Re: [AfrICANN-discuss] DotAfrica Complaint « ICANN Ombudsman Blog

[Brian Munyao Longwe]

Interesting, very interesting...

cell: +254715964281
On Dec 10, 2012 9:31 AM, "Badru Ntege" <badru.ntege at nftconsult.com> wrote:

>  FYI
>
>
>
>  https://omblog.icann.org/?p=823
>
>   ICANN Ombudsman Blog
>
> *Office of the Ombudsman*
>
> *Case 12-00241*
>
> *In a matter of a Complaint by Sophia Bekele for DotAfrica*
>
> *Report dated 10 December 2012*
>
> *Introduction*
>
> This complaint began with a letter in relation to allegations of conflict
> of interest on the part of 2 members of the board of ICANN. The complaint
> was made by Sophia Bekele on behalf of DotAfrica, which is one of 2
> applications for the new generic top-level domain .africa. By way of
> background, the new gTLD program is probably the most significant change to
> the domain name system for many years. There are over 2000 different
> applications for approximately 1100 names, and this application (.africa)
> like many others, has several applicants. There is a considerable amount at
> stake both financially and for other reasons and therefore the applicants
> are watching the process very closely.
>
> *Facts*
>
> The essence of the complaint is a complaint about a conflict of interest
> with members of the ICANN board in considering issues about new gTLDs
> applications. This was first raised by DotConnectAfrica which sent 2
> separate letters dated July 9, 2012 to report a matter of Conflict of
> Interest on .Africa new gTLD applications regarding Mr. Mike Silber, a
> member of the ICANN Board from South Africa, and Mr. Chris Disspain, a
> member of the ICANN Board from Australia. Subsequently a complaint was made
> to the office of the ombudsman in relation to the issue on October 2012.
>
> There has been considerable amount of discussion on blogs, Twitter and
> other sites and in comments on the ICANN website in relation to the new
>  .africa gTLDs applications. Regrettably much of the discussion has been
> intemperate. I discuss this further in this report.
>
> To examine the complaint it is necessary to see what the Board has
> discussed about the gTLD programme.
>
> ICANN has set up a process for managing the new gTLD applications,
> appointed staff and for the purpose of governance the ICANN board
> established a specific committee for the purpose of considering issues with
> regard to the new gTLDs program.
>
> The committee was established on the 10th April 2012, when the ICANN
> Board resolved to set up a New gTLD Program Committee with the voting
> members of the Committee to be Rod Beckstrom, Cherine Chalaby, Chris
> Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj,
> George Sadowsky, Mike Silber, and Kuo-Wei Wu; with liaisons to the
> Committee Thomas Roessler; and the Chair of the Committee Cherine Chalaby.
> At the same time resolutions were passed about conflict of interests
> policies.
>
> “*Resolved (2012.04.10.03), all members of the New gTLD Program Committee
> reinforce their commitment to the 8 December 2011 Resolution of the Board
> (Resolution 2011.12.08.19) regarding Board member conflicts, and specifying
> in part: “Any and all Board members who approve any new gTLD application
> shall not take a contracted or employment position with any company
> sponsoring or in any way involved with that new gTLD for 12 months after
> the Board made the decision on the application.”*
>
> *Resolved (2012.04.10.04), the Board directs the CEO to prepare a
> document setting forth a process for the creation of Board Committees to
> address future situations where there may be multiple Board members with
> perceived, potential or actual conflicts of interest on an issue.”*
>
> The starting point for conflict of interest policy is the policy adopted
> in December 2011. The purpose of this policy is to identify conflicts of
> interest but also to ensure that any such conflicts are identified. The
> Board Governance Committee of ICANN is responsible for administering policy
> and requires board members to complete statements of position on an annual
> basis.
> Http://www.icann.org/en/groups/board/governance/coi/coi-policy-08dec11-en.htm
>
> Under this policy regular statements of interest are lodged with the
> secretary for ICANN. The latest relevant to this is 12 March 2012-from the
> ICANN Website:-
>
> “Summary of ICANN Board Statements of Interests
>
> Mike Silber – Director and treasurer of ccTLD .za domain name authority
> and member of the Management Committee and treasurer of Internet Service
> provider Association (ISPA) South Africa.
>
> Chris Disspain – Director and CEO of .au Domain Administration Limited,
> the .au ccTLD manager; .au has sponsorship agreement with ICANN under which
> .au pays ICANN a yearly amount based on the amount of names under
> management. Former Officer of ICANN, Paul Levins, has been named as a
> Director of .au Domain Administration Limited.”
>
> I have asked the complainant to specifically identify the actual conflicts
> and asked “I would like to have explained the precise details of the
> conflict of interest which you say exists with these two board members.” I
> have not received any more detail than the letters, which identify
> connections, said to be the conflicts of interest.
>
> *Investigation*
>
> To conduct this investigation it has been necessary to look at the board
> meeting minutes to analyse whether there have been any decisions made at
> the new gTLDs subcommittee which actually affect the complainant. It is of
> course quite possible that there would be issues which affect these 2
> applications, but virtually all of the minutes of the committee are
> available online and available to be read. In addition, I have called for
> material from Sophia Bekele, discussed the issue with her, and also had
> discussions with both Chris Disspain and Mike Silber. The secretary to the
> ICANN board and counsel to ICANN, John Jeffrey, has the responsibility for
> identifying matters such as conflict of interest and I therefore discussed
> the matter with him. There is also a considerable amount of material
> discussing the .africa applications on a number of different blogs and
> other sites which discuss the applications and the merits. Clearly both
> parties seeking the .africa gTLD are passionate about their respective
> applications, but some of the writers appear to have failed to restrain
> themselves in criticism. For the purpose of this investigation it has not
> been necessary for me to consider the level of acrimony and accusations,
> except to say that it is unfortunate.
>
> Specifically, the purpose of the investigation is to analyse whether in
> fact there has been any actual conflict of interest with the 2 board
> members in considering issues in relation to the .Africa applications. For
> this purpose I have looked at the minutes of the committee to determine
> whether there has been any discussion recorded on the .africa applications.
> That is of course not the only venue where such matters are discussed, and
> the minutes of the full board meeting would also be relevant. I have
> therefore also checked those minutes. They also do not have any mention of
> the issue. That is perhaps not surprising, considering that individual
> details of the new gTLDs applications are unlikely to be discussed by the
> board until very much later in the process. It is clear that the
> discussions at the board level are at a higher level of policy and process
> to be put into place to handle program and the applications.
>
> The letters of complaint identify connections between the 2 board members
> and the competing application. It is however necessary to identify the
> appropriate standard required for a conflict of interest to exist, and for
> the conflict to be an issue requiring those board members to recuse
> themselves on any issues. As part of my investigation I have therefore
> taken advice on the appropriate test for conflict, in the context of a
> non-profit company incorporated in California.
>
> *Jurisdiction*
>
> This is a matter where I clearly have jurisdiction. If there is a conflict
> of interest then this would result in unfairness, which under Bylaw V, is a
> matter that I can investigate.
>
> *Reasoning*
>
> The complainant’s issue is of course one of considerable importance if
> proved. It must be said however, that the standard for conflict of interest
> for members of a board of directors of a company, is somewhat different
> from the standard required for arbitrators or judges. There is of course an
> important distinction between actual bias and apparent bias. But underlying
> this is the need for some action by the members of the board which would
> offend against principles of conflict of interest. However it is clearly
> apparent when the records are examined, that the 2 board members have not
> participated in any decision-making about .africa, and indeed there has
> been little discussion other than at a higher level about the program in
> general. It is in my view premature to consider whether there can even be
> apparent bias, because it is too remote to link the suggested connections
> with the very generic discussions which have taken place, and in addition,
> where the actual decisions about the applications are still some distance
> from being made.
>
> *Result*
>
> As a result of this investigation, I consider that no disqualifying
> conflict of interest, or indeed any conflict of interest at all, is present
> in the actions of both Chris Disspain and Mike Silber. It is likely this
> complaint has led to increased awareness of the possibilities of conflict
> of interest, which the Board will carefully consider in terms of the
> existing policy about conflict, when the issue arises. I consider this
> should continue to be a matter for consideration in gTLD decision making by
> the Board.
>
> An aspect of this application has been the unfortunate tone of much of the
> debate on various websites blogs and other places. During the course of
> this investigation I discussed this with Sophia Bekele (at the Toronto
> meeting) and suggested that perhaps a less aggressive approach would be
> appropriate. She readily agreed to this. The discussion and debate
> continues to be fairly vigorous, but I would suggest to the competing
> parties for .africa that they should pay attention to the ICANN rules about
> respectful communication. No doubt feelings are deep and passions strong.
> However I would urge the parties to consider the ground rules for such
> debate.
>
>
>
> Chris LaHatte
>
> Ombudsman
>
>
>
>
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