ICANN will most certainly ignore the Namecheap IRP decision

“The Internet Corporation for Assigned Names and Numbers (ICANN) received the final declaration in the Namecheap, Inc., versus ICANN Independent Review Process (IRP) on 26 December 2022. ICANN’s IRP is a dispute-resolution mechanism created under the ICANN Bylaws. The final declaration was issued by a three-member panel of neutral arbitrators, following a formal and lengthy process administered by the International Centre for Dispute Resolution.

In the IRP, Namecheap, an ICANN-accredited registrar, challenged the lack of price controls in the 2019 Registry Agreements for .BIZ, .INFO, and .ORG, as well as ICANN’s consideration of Public Interest Registry’s request for indirect change of control (change of control request). In January 2021, the IRP panel granted ICANN’s motion to dismiss the change of control issue, so the remaining claims were the subject of the IRP.

The IRP panel agreed with ICANN that Namecheap failed to prove that the removal of the price controls amounted to discriminatory treatment under the Bylaws. Further, the IRP panel agreed with ICANN that several of the Namecheap claims were untimely, including all claims involving .BIZ, the claim that ICANN should not have allowed registries and registrars to vertically integrate, and the claim that ICANN violated a policy from February 2006 relating to the renewal of legacy Registry Agreements.

Ultimately, however, the IRP panel found that ICANN’s approval of the 2019 Registry Agreements for .INFO and .ORG without price controls violated the Articles and/or Bylaws in a few ways, including ICANN was not sufficiently transparent in its decision making, the Board did not, but should have made the decision about these particular Registry Agreement renewals, and ICANN did not follow procedures for ensuring promotion of the global public interest.

The panel viewed these violations as procedural rather than substantive in nature, and recommended, but did not order, that the ICANN Board analyze and discuss what steps to take to remedy the specific violations and to improve its overall decision-making process to ensure that similar violations do not occur in the future. Notably, Namecheap urged the panel to order ICANN to re-impose price controls in the .BIZ, .INFO, and .ORG Registry Agreements. The panel did not do so, and stated that such an “order” is not within an IRP panel’s remit and that there is a “clear distinction” between the panel’s “power to ‘declare’ and its power to ‘recommend.'”

ICANN is in the process of reviewing and evaluating the lengthy final declaration. The ICANN Board will consider the final declaration as soon as feasible and within the timeframe prescribed in the Bylaws.”