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INTERNATIONAL CHAMBER OF COMMERCE,INTERNATIONAL CENTRE FOR ADR. Case No EXP 600,INTERNET CORPORATION,FOR ASSIGNED NAME AND NUMBERS ICANN. Related to the Expert Determination rendered in EXP 412 ICANN 29 between the. following parties, PROFESSOR ALAIN PELLET Independent Objector v RUBY PIKE LLC. FINAL EXPERT DETERMINATION,August 31 2016,Expert Panel. Prof Andrew Christie Co expert,Mr Bernardo M Cremades Chair.
Prof Jan Kleinheisterkamp Co expert,Table of Contents. I Introduction 1,A The Party 1,B Related Entities and Persons 1. C Expert Panel 2,D Background 4,E Procedural Matters 8. 1 Expert s Mission and Procedural Timetable 8,2 Procedural Issues During the Proceedings 8. 4 Place of the Proceedings 8,5 Language of the Proceedings 8.
6 Publication of the Final Expert Determination 8,II Review of Expert Determination 9. A Parties Positions 9,1 The IO 9,2 The Applicant 11. B Standard of Review 13,C Analysis of Expert Determination 14. 1 The IO s Alleged Bias 14,2 The IO s Standing 15,3 The Quick Look Procedure 16. 4 The First Expert Panel s Analysis of the LPI Objection 18. a The intended purpose of the gTLD string 18, b Is HOSPITAL contrary to principles of international law as reflected in.
international instruments of law relating to public order and morality 21. III Final Expert Determination 25,IV Decision 27,Table of Abbreviations. Abbreviation Meaning, Appendix III Appendix III to the ICC Expertise Rules Schedule of. expertise costs for proceedings under the new gTLD. dispute resolution procedure,Applicant Ruby Pike LLC USA. Centre International Chamber of Commerce International Centre. for Expertise, Dissenting Opinion Dissenting Opinion of Prof August Reinisch. Donuts The Applicant s parent company Donuts Inc, Expert Determination Expert Determination in case no EXP 412 ICANN 29.
Expert Panel Prof Andrew Christie co expert Mr Bernardo M. Cremades chair Prof Jan Kleinheisterkamp co expert. Final Expert This Final Expert Determination in case no EXP 600. Determination, First Expert Panel Expert Panel in case no EXP 412 ICANN 29 comprising. Prof August Reinisch co expert Mr Ike Ehiribe co,expert and Mr Piotr Nowaczyk chair. GAC Governmental Advisory Committee,gTLD Generic top level domain. Guidebook Module 3 of the gTLD Applicant Guidebook. HOSPITAL gTLD requested by Applicant, ICANN Internet Corporation for Assigned Names and Numbers. ICC International Chamber of Commerce, ICC Practice Note ICC Practice Note on the Administration of Cases.
IO Independent Objector Prof Alain Pellet,LPI Limited public interest. Objection Limited public interest objection filed by IO on March 12. Procedure Attachment to Module 3 New gTLD Dispute Resolution. Request Request for the administration of Expert proceedings. regarding the Final Review of the Limited Public Interest. Objection against Ruby Pike LLC s application for,HOSPITAL dated March 30 2016. Rules International Chamber of Commerce Rules for the. Administration of Expert Proceedings in force as from. February 1 20151,WHO World Health Organization,WHOIS Domain name search tool. The Expert Determination in EXP 412 ICANN 29 was issued in accordance with the previous version of. the International Chamber of Commerce Rules for the Administration of Expert Proceedings. This Final Expert Determination is issued in accordance with Article 8 of the International. Chamber of Commerce Rules for the Administration of Expert Proceedings in force as. from February 1 2015 the Rules,I INTRODUCTION, 1 This Final Expert Determination arises out of the Request for the administration. of Expert proceedings regarding the Final Review of the Limited Public Interest. Objection against Ruby Pike LLC s application for HOSPITAL dated March 30. 2016 the Request,A The Party, 2 The sole party in these proceedings is the Internet Corporation for Assigned Names.
and Numbers ICANN with the following details,12025 Waterfront Drive Suite 300. Los Angeles CA 90094,United States of America,Amy Stathos amy stathos icann org. Tel 1 310 301 3866,Elizabeth Le elizabeth le icann org. Tel 1 310 578 8902, 3 ICANN is not represented by outside counsel in this matter. B Related Entities and Persons, 4 This Final Expert Determination relates to the objection to a generic top level.
domain gTLD and the Expert Determination rendered in EXP 412 ICANN 29. between the following persons and entities who are not direct parties to the present. proceedings,Professor Alain Pellet Independent Objector IO. 16 Avenue Alphonse de Neuville,92380 Garches,Ruby Pike LLC Applicant. 10500 NE 8th Street Suite 350,Bellevue WA 98004,United States of America. 5 The IO has been appointed by ICANN to serve for the entire new gTLD program. and object to highly objectionable gTLD applications on Limited Public Interest. and Community Grounds as is stated in paragraph 3 2 5 of Module 3 of the gTLD. Applicant Guidebook the Guidebook, 6 The Applicant is an American limited liability company an affiliate of Donuts Inc. Donuts Donuts has applied for 307 new gTLDs representing a variety of. common dictionary names 2,C Expert Panel, 7 By letter dated June 9 2016 the International Chamber of Commerce International.
Centre for ADR the Centre appointed the Experts and transferred the file to the. Expert Panel constituted by Prof Andrew Christie Prof Jan Kleinheisterkamp and. Mr Bernardo M Cremades, 8 Mr Christie holds Bachelor degrees in Science and in Law from the University of. Melbourne a Master degree in Law from the University of London and a PhD in. Law from the University of Cambridge He is admitted to legal practice in Australia. and in England and Wales and practised intellectual property law for many years. with firms in Melbourne and London He is the foundation Chair of Intellectual. Property at Melbourne Law School University of Melbourne where he researches. and teaches all aspects of intellectual property law with a particular focus on. copyright patents and trademarks in the digital environment He has extensive. Response of Applicant dated May 15 2013 p 7, experience in domain name disputes having been a member of approximately 200. panels making determinations under various ICANN Policies. Prof Andrew Christie Co Expert,Melbourne Law School. University of Melbourne,Melbourne VIC 3010,Tel 61 3 8344 6201. Email a christie unimelb edu, 9 Mr Kleinheisterkamp holds a PhD in Law iuris doctor of the University of.
Hamburg and is admitted to legal practice in D sseldorf Germany He is an. associate professor at the Law Department of the London School of Economics. where his research and teaching focuses on international commercial contracts. arbitration investment law and their intersections with international law and EU. law He has extensive experience as a commercial arbitrator and is a member of the. Governing Body for Dispute Resolution of the International Chamber of Commerce. as well of the Advisory Group for International Arbitration of the UK Government. He has previously sat on another expert panel regarding a gTLD Limited Public. Interest Objection ICC Case No EXP 458 ICANN 75,Prof Jan Kleinheisterkamp Co Expert. London School of Economics Law Department,Houghton Street. London WC2A 2AE,United Kingdom,Mob 1 607 307 1292,Email j kleinheisterkamp lse ac uk. 10 Mr Cremades is the founding partner of B Cremades Asociados where he. regularly acts as an arbitrator in domestic and international disputes including both. commercial arbitration and investment protection He holds degrees in Law from. the University of Seville and the University of Cologne including a PhD He has. published a number of articles and papers on issues relating to international. arbitration and dispute resolution He has previously acted as an expert in gTLD. string determinations,Mr Bernardo M Cremades Chair. B Cremades Asociados,Calle Goya 18 2,28001 Madrid,Tel 34 914 237 200.
Fax 34 915 769 794,Email bcremades bcremades com,D Background. 11 This Final Expert Determination arises out of the Request made by ICANN on. March 30 2016 The Request states that t he task of the Panel will be to review. Final Review and possibly render a decision Final Expert Determination in. accordance with the instructions provided herewith The Final Expert. Determination will be used by ICANN as part of the evaluation process for the new. gTLD application for the HOSPITAL string 3, 12 ICANN explains that i n the framework of the New Generic Top Level Domain. New gTLD Program ICANN invited applications for the new registries of the top. level domain names In order to protect certain existing interests and rights ICANN. put in place a dispute resolution procedure The procedure provided a path for. formal objections during the application evaluation process and allowed a party. with standing to have its objection considered before a panel of qualified experts. This procedure is governed by the New gTLD Applicant Guidebook Module 3. Guidebook and its attachment New gTLD Dispute Resolution Procedure. Request by ICANN dated March 30 2016 p 1, Procedure as well as by the relevant rules of the dispute resolution service. providers 4, 13 ICANN has further appointed the figure of the IO in order to ensure that the best. interest of the public using the global Internet is preserved The IO s role was to file. objections on behalf of the Internet community independently from ICANN 5. 14 The IO filed nine limited public interest objections against health related. applications in accordance with Article 2 e of the Procedure This included an. objection against the Applicant s application for the HOSPITAL string The. objection was filed on March 12 2013 The Applicant submitted its Reply on May. 16 2013 Additional filings by the Applicant and the IO were permitted. 15 On June 14 2013 the ICC appointed a three member expert panel the First. Expert Panel The First Expert Panel was comprised of Prof August Reinisch. Co Expert Mr Ike Ehiribe Co Expert and Mr Piotr Nowaczyk Chair In. accordance with Article 21 of the Procedure the First Expert Panel issued The. Expert Determination dated December 11 2013 the Expert Determination. Prof August Reinisch issued a Dissenting Opinion dated December 12 2013 the. Dissenting Opinion, 16 Following the issuance of the Expert Determination the Applicant challenged the.
reasonableness of the Expert Determination as part of the application process The. Applicant argues that the HOSPITAL Expert Determination deviates from all. other health related limited public interest LPI expert determinations and that. the result is inconsistent and unreasonable 6 The Applicant argues that the First. Expert Panel was the only health related LPI objection expert panel that evaluated. the sufficiency of certain protections and safeguards while other expert panels. deferred to ICANN to implement and enforce such safeguards as necessary 7. 17 Following its challenge to ICANN regarding the Expert Determination ICANN. concluded in a Board Resolution dated February 3 2016 the Board Resolution. that the underlying HOSPITAL Expert Determination is seemingly inconsistent. with the expert determination resulting from all other health related LPI objections. thereby rendering it potentially unreasonable and that it thus warranted re. evaluation 8, 18 The Board Resolution resolved that the HOSPITAL Expert Determination was. not in the best interest of the New gTLD Program and the Internet. community and the Board direct ed the President and CEO or his designee s. to take all steps necessary to address the perceived inconsistency and. unreasonableness of the HOSPITAL Expert Determination by sending all of the. materials for the relevant objection proceeding back to the International Centre of. Expertise of the International Chamber of Commerce ICC 9 The Board. Resolution further provides that the Expert Panel should review as background the. following Related LPI Expert Determinations,Related LPI Expert Determinations String. Independent Objector v DotHealth LLC Case No HEALTH. EXP 416 ICANN 33,Independent Objector v Goose Fest LLC Case HEALTH. No EXP 417 ICANN 34, Independent Objector v Afilias Limited Case No HEALTH. EXP 409 ICANN 26, Independent Objector v Silver Glen LLC Case HEALTHCARE.
No EXP 411 ICANN 28,Independent Objector v HEXAP SAS Case No MED. EXP 410 ICANN 27,Independent Objector v Medistry LLC Case No MED. EXP 414 ICANN 31, Available at https www icann org resources board material resolutions 2016 02 03 en 2 c. Independent Objector v Charleston Road Registry MED. Inc Case No EXP 415 ICANN 32, Independent Objector v Steel Hill LLC Case No MEDICAL. EXP 415 ICANN 30, 19 The Board Resolution states that the Board is uniquely swayed by the.
Applicant s assertions that the HOSPITAL Expert Determination is inconsistent. with the other eight health related LPI Expert Determinations thereby rendering it. potentially unreasonable and thereby warranting re evaluation. 20 The Request states that the Expert Panel shall render a written and reasoned. decision to establish whether the underlying expert determination rendered in the. Expert Determination was reasonable through an appropriate application of the. standard of review as set forth in Module 3 of the Applicant Guidebook 10 The. Request establishes that the Expert Panel is to either. 20 1 Conclude that the Expert Determination is supported by the standard of. review and reference to the Related LPI Expert Determinations and adopt the. Expert Determination as the Final Expert Determination or. 20 2 Reverse the Expert Determination and render a new Final Expert. Determination that shall replace and supersede the Expert Determination 11. 21 The Expert Panel shall determine whether the First Expert Panel could have. reasonably come to the decision reached in the Expert Determination through an. appropriate application of the standard of review as set forth in the Guidebook. 22 Should the Expert Panel determine that the Expert Determination was not. reasonable the Expert Panel shall render a Final Expert Determination upon the. Request by ICANN dated March 30 2016 p 5, merits of the IO s objection applying the standards as identified by ICANN in the. Guidebook as relevant to the LPI objection,E Procedural Matters. 1 Expert s Mission and Procedural Timetable, 23 ICANN waives the obligation of the Expert Panel to prepare an Expert s Mission. in accordance with Article 6 of the Rules as well as the Procedural Timetable in. accordance with Article 7 of the Rules,2 Procedural Issues During the Proceedings. 24 The Expert Panel shall not contact ICANN the IO or the Applicant All guidance. on procedural questions is taken by either the Expert Panel or the Centre on the. basis of the Rules, 25 The Expert Panel has not contacted ICANN the IO or the Applicant.
26 ICANN shall bear the total costs of the proceedings as stipulated in the Request. 4 Place of the Proceedings, 27 The place of the proceedings is Paris France as stipulated in the Request. 5 Language of the Proceedings, 28 The language of the proceedings is English as stipulated in the Request. 6 Publication of the Final Expert Determination, 29 The Centre shall publish the Final Expert Determination on its website dedicated to. ICANN procedures as stipulated in the Request,II REVIEW OF EXPERT DETERMINATION. 30 The Expert Panel has examined all of the documents provided by the Centre. including and not limited to the Applicant and the IO s submissions the Expert. Determination and the Related LPI Expert Determinations. A Parties Positions, 31 The Applicant s and the IO s submissions have been summarized accurately and.
sufficiently in the Expert Determination However in making its findings the. Expert Panel relies on the written arguments of the Applicant and the IO and not. on the First Expert Panel s summary of the arguments The below summary is. further not intended to be a comprehensive and exhaustive summary of the. arguments that have been presented but rather an instructive overview of the issues. in contention, 32 The IO had stated that he is not affiliated with any of the gTLD applicants and. remained impartial and independent as required under the Guidebook The IO. argued that he did not favor any special interests including medical interests and. that he had not targeted the Applicant s Application In this regard he stated that he. has filed further objections against gTLD strings that are completely unrelated to. healthcare matters including Amazon and Indians The IO stated that he was. entitled to bring the present objection in accordance with paragraph 3 2 5 of the. Guidebook which provides that i n light of the public interest goal the IO shall. not object to an application unless at least one comment in opposition to the. application is made in the public sphere The IO asserted that such criterion has. been satisfied, 33 In objection to the Applicant s Application the IO brought a Limited Public Interest. Objection pursuant to paragraph 3 5 3 of the Guidebook arguing that the. HOSPITAL string is contrary to general principles of international law for. morality and public order Specifically the IO argued that pursuant to paragraph. 3 5 3 of the Guidebook the HOSPITAL string would be contrary to specific. principles of international law as reflected in relevant international law. instruments, 34 The IO argued that his objection is against the gTLD string itself but it should. further be considered in the context of the stated intended purpose as it may be. derived from the description of the Applicant s position provided for in the section. titled Mission Purpose of the Application The IO stated that the HOSPITAL. string is not objectionable per se but that the HOSPITAL string and its intended. operation would be objectionable from the perspective of specific principles of. international law for morality and public order The IO argued that the modalities. specified in the Application do not guarantee the use of the HOSPITAL string in. full respect of these general principles of international law for morality and public. 35 The IO stated that LPI Objections are not solely objections against the word or the. gTLD string itself and that regard may be had to the intended use of the gTLD as. well as its confiscation for purely commercial purposes The IO makes reference to. paragraph 3 5 3 of the Guidebook which provides that t he panel will conduct its. analysis on the basis of the applied for gTLD string itself The panel may if needed. use as additional context the intended purpose of the gTLD as stated in the. application The IO argues that regard may therefore be had to the intended use of. the gTLD string, 36 While recognizing the importance of freedom of expression which the IO regards. as a general principle of international law the IO states that this is not unlimited. The IO refers to paragraph 3 5 3 of the Guidebook which states that the right to. freedom of expression carries with it special duties and responsibilities and. certain limited restrictions may apply, 37 The essence of the IO s objection is that the term hospital is inextricably.
connected to health and health is commonly deemed to be a fundamental human. right under international law instruments A state that provides misleading health. related information would be in violation of its international obligations under the. International Covenant on Economic Social and Cultural Rights The IO further. relied on a large number of international legal instruments in highlighting the. significance of health as an international human right encompassing the right to. health related information, 38 The IO argued that the responsibilities regarding the protection of health as a. human right extend to the private sector as well as the public sector The IO took. the view that the Applicant should demonstrate how the policies and decision. making of the Applicant will be properly connected to the public authorities. Furthermore the IO argued that the Applicant has not proposed sufficient and. adequate safeguard mechanisms to ensure that these international obligations are. 39 The IO referred to the Safeguard Advice issued by ICANN s Governmental. Advisory Committee GAC on April 11 2013 which stated that extensive. additional safeguards should be put in place for a range of gTLDs including. HOSPITAL The IO argued that the safeguards suggested by the Applicant. including four additional safeguards for the protection of HOSPITAL actually. demonstrate that the Applicant does not truly appreciate the extent of its duties and. obligations under international law relating to the right to health. 40 The IO therefore submitted that his objection to the Applicant s application should. 2 The Applicant, 41 The Applicant questioned the independence of the IO and argued that the IO had. filed very few objections and that his objections against Donuts represent a. significant proportion of the IO s objections The Applicant also highlighted that. the IO has brought objections against only health related applications as well as. the IO s background working in healthcare and policy.

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