Having been appointed by ICANN to represent the interest of the online community as regard to the delegation of new extensions, the IO could take charge of questions concerning public interest and the community’s objections when none objected to the application.
In the present case, the IO argued for a “substantial opposition” of the Amazonian communities against the claims of the company Amazon on the delegation of <.amazon> as well as its equivalents in Japanese and Chinese characters.
The Internet giant defended itself by highlighting the lack of proof as regard to the existence of this “substantial opposition” and the damages which could be caused by the Amazonian communities in case of <.amazon> delegation. Furthermore, as outlined by the expert Lucas G. Radicati di Brozolo, the community does not seem to have suffered from the use of the domain name <amazon.com>.
If this ground is sufficient for the Expert to reject the objection then he has analysed the independence of the objector in an incidental manner in accordance with the request of Amazon.
The famous online marketplace highlighted that there is a conflict of interest arising from the close ties between the IO and the government representing the Amazonian communities (Brazil and Peru) whereas he can act only on behalf of Internet users. Thus, his objection would only aim at formalising the objection of the governments. Alain Pellet denied the charges by affirming that the link simply results from a “normal average social life”.
This vision of the “social life” won’t be shared by the expert of the ICC. Based on objective criteria, he asserts that the ties between the IO and the two major representatives of the Amazonian communities lead to justifiable doubts as to his independence. As far as the importance of ensuring neutrality, independence and impartiality of the IO’s office and of the overall process of dispute resolution for gTLDs are concerned the objection of the claimant company on the IO’s independence must be welcomed. What image will ICANN and the candidates to the contracts of delegation of new extensions will project with a non-independent Independent Objector?
This debate is not new… The issue of the independence of the IO has in vain been raised against the IO’s opposition on the delegation of <.patagonia>. The counsel of the applicant company had not only highlighted the ties of Alain Pellet with Argentina and Chilli which have constantly designated him as arbitrator in different international litigations but also with his team of counsel at the ICC. The representation of the Argentine Republic by Mr Daniel Müller in the case Certain Pulp Mills on the River Urugay in 2006-2010 or the representation of the Chilean Republic by Mr Samuel Wordsworth concerning a maritime dispute with Peru were thus exposed. Finally, the presence of Héloïse Bajer-Pellet who is presumably the daughter or daughter-in-law of the Professor Pellet in the board also gives rise to concerns regarding the notion of independence as interpreted by IO.
It is neither necessary to call down anathema on the IO nor challenge his goodwill. However, one can blame some sort of regrettable clumsiness.
There is a need to consolidate the IO’s practices in the realisation of its mission in order to reassure the applicants of new gTLDs domain names on the seriousness of delegation operations as regards to their investment of time and money.
The delegation of <.amazon> generates a lot of discussion: the Governmental Advisory Committee (GAC) has advised the Executive Committee of ICANN to withdraw this extension. This victory undoubtedly constitutes a major asset for Amazon to convince of the contrary!