ICANN’S ACCOUNTABILITY


order to assume that role of accountability. Te internet community is eagerly awaiting proposed solutions.


At ICANN 49, chief executive Fadi Chehadé spoke at length about the “IANA accountability transition”. He referred to the technical part of the internal accountability, where he sees ICANN as a facilitator of protocols and policies put in place by the supporting organisations, which include its policy-making bodies.


So, ICANN looks quite self-confident about maintaining the technical side of


the IANA


functions. But what role does ICANN want to play? And what role does the internet community expect ICANN to play?


The meaning of accountability Te internet community is expecting


an


acknowledgement by ICANN, not of its role as a facilitator but as an entity responsible for its own actions. Tere was a lot of confusion on this subject during ICANN 49. With Chehadé having communicated his intention for ICANN to become a globally inclusive and collaborative organisation, the key question will be


the


following: ‘regardless of ICANN’s future mission and structure, how will it be legally responsible and ultimately liable for its actions?’


Accountability can be taken to mean good


governance, transparency, and responsiveness. We


expect an accountable ICANN to at be


transparent, to explain its actions and to justify them. Te accountability debate


ICANN


49 appeared to be limited to ICANN’s internal accountability to those who actively participate in each of the various ICANN constituencies. Te problem is that the vast majority of internet users do not participate in—let alone know of— ICANN's activities.


Tere is, therefore, a need to ensure that ICANN is accountable externally, to the global internet community. Te only true external accountability mechanism that ICANN currently has is its accountability to the US government under its current contracts. ICANN’s role is of course important to all countries of the world. Tere is clearly no international consensus (yet) on the creation of a new organisation to exercise ICANN’s role, or on the delegation of that role to some other existing organisation. Te question is whether the internet community is currently pursuing such a consensus.


Accountability also includes responsibility and liability, which are legal concepts. We expect ICANN to be responsible for its own wrongful acts. We expect it to be liable for the


52 Trademarks & Brands Online


“THE INTERNET COMMUNITY IS EXPECTING AN


ACKNOWLEDGEMENT BY ICANN, NOT OF ITS ROLE AS A FACILITATOR BUT AS AN ENTITY RESPONSIBLE FOR ITS OWN ACTIONS.”


consequences of its actions (or non-actions),


regardless of the intentional or unintentional aspect of its conduct.


We also expect alternative solutions to be offered in cases where ICANN fails to deliver or when it fails to act in a timely manner. Ultimately, legally speaking, this means the payment of damages—a remedy nobody should be seeking in the internet ecosystem, where continuity of business is the real objective. Te liability concept also requires an appropriate forum that can be asked to rule on ICANN’s performance (or its failure to perform), grant relief and, ultimately, force ICANN to comply with the relief granted—and to do all of this in a timely and independent manner.


Under the present rules, initiatives that are meant to remind ICANN of its responsibility and, ultimately, of its liability, are discouraged. Interested parties are required to go through a series of lengthy and costly proceedings. Tey must first initiate a request for reconsideration, which is a request to the ICANN board to review or reconsider an action (or inaction) by ICANN or its vendors. If unsuccessful, parties can initiate an independent review process (IRP).


Volume 3, Issue 2


An IRP is, however, expected to be preceded by a cooperative engagement process (CEP). Te CEP is conducted on a confidential basis and is meant to reach a definitive agreement on the resolution of the issue, focusing on the open issues and avoiding an IRP. A CEP may refer a matter to the ICANN board. Te CEP is highly recommended because its recently amended rules state that an IRP may be followed by a claim by ICANN for the costs it incurs when responding.


Clearly, any party should be able to test reasonable questions of fact and law in legal proceedings involving ICANN. And any party should be allowed to seek redress through effective dispute resolution mechanisms. In an environment that has become undoubtedly more international, the legal structure and incorporation of ICANN raise questions on conflicts of applicable law and jurisdiction as well as enforcement.


Rather than searching for impunity, shouldn’t the organisation that takes on more functions also affirm its commitments with increased responsibilities towards the entire internet community? 


Flip Petillion is a partner at Crowell & Moring LLP. He can be contacted at: fpetillion@crowell.com


Flip Petillion is a litigation partner at Crowell & Moring’s intellectual property and international dispute resolution groups. He is co-chair of the TLD and domain names practice and chair of the Brussels trademark practice. Petillion assists many multinational brand owners in developing strategies towards ICANN’s new gTLD programme.


www.trademarksandbrandsonline.com


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