.XXX Arbitration to Be Held in September

Jun 15, 2009 9:30 AM PST
PALM BEACH, Fla. — ICM Registry’s top-level domain .XXX proposal will go through a round of arbitration in late September.

ICM Registry is asking for a three-judge panel to rule in favor of its application to serve as .XXX registry operator because it met criteria set forth in a December 2003 request for proposal.

ICM Registry claims in more than a 1,000 pages of documents that ICANN acted inconsistently with its own articles of incorporation and bylaws.

Stuart Lawley, who is chairman and president of ICM Registry, told XBIZ Monday that the venue for arbitration will be in Washington, D.C., and not the Hague, as originally planned.

The neutrals involved, Lawley told XBIZ, include Judge Stephen Myron Schwebel, an independent arbitrator and counsel who is an expert on international law. Schewebel has been appointed in 50 international commercial arbitrations and in five intergovernmental arbitrations.

Schwebel will be joined by two other arbitrators — one from Europe, one from the U.S.

Lawley said he’s adamant about a victory using alternate dispute resolution.

“[It’s] always been a win for us in our opinion,” he said. “That's why we have invested more than $3 million to date in legal fees alone for this.”

ICM Registry saw its application to enable .XXX killed by the Internet policy-making board for a third time in March 2007 after three years of planning.

The scuttled proposal would have made ICM Registry required to contract third parties to monitor registrant compliance with content site-labeling requirements.

It also would have been required to create a set of “best practices” to protect children online and fund the International Foundation for Online Responsibility, an independent organization ICM has said it would create if approved. ICM pledged to donate $10 of the proposed annual fee of $60 for a .XXX domain name to child-protection groups and require users of .XXX to label their content.

ICM Registry briefs submitted by Washington, D.C., law firm Crowell & Moring in late January contend that ICANN’s decision to nix .XXX were arbitrary.

Lawley contends that the reasons that ICANN cited as the basis for its denial of ICM’s application were false and pretextual — “a mere cover for ICANN’s bowing to undue political pressure.”

The brief was referring to alleged pressure from the U.S. Commerce Department, which ICM Registry accused of working behind the scenes to kill .XXX. Later, a federal judge ruled against ICM Registry in its bid to gain access to conversations between ICANN and the federal agency through a Freedom of Information Act suit.

ICM Registry also contends that a .XXX proposal has a lot of support among online adult businesses because so many of them sought domain name addresses with the .XXX suffix.

“There is substantial industry support for the .XXX domain, as evidenced by the letters of support submitted with ICM’s application and the large number of providers that have participated in ICM’s pre-reservation program, which allows for applicants to reserve domain names in advance of the approval of the sTLD application for .XXX,” the brief said. “To date, over 100,000 such pre-reservations have been made.”

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