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"Expert determinations and procedural fairness" [2019] ELECD 581; in Mahler, Tobias (ed), "Generic Top-Level Domains" (Edward Elgar Publishing, 2019) 178

Book Title: Generic Top-Level Domains

Editor(s): Mahler, Tobias

Publisher: Edward Elgar Publishing

Section: Chapter 10

Section Title: Expert determinations and procedural fairness

Number of pages: 26

Abstract/Description:

Chapter 10 examines the outcomes of the 2012 gTLD application round, focussing especially on expert determinations and procedural fairness. The application process was a significant step forward compared with the shortcomings of earlier gTLD rounds. Nevertheless, there is still significant room for improvement. ICANN did not make application decisions, but instead, outsourced the decision making to independent experts. Although this is not automatically unfair, the experiences show that it was challenging to ensure fairness and administrative due process. The cases illustrate that an appeals mechanism for expert determinations in the AGB would have been useful. Legal systems generally foresee a right to appeal because it contributes to fair decisions by excluding mistakes and bad judgments like the ones seen in the 2012 application round. Moreover, despite lawmakers’ best intentions, it must be recognised that law is necessarily vague. It is possible to achieve some level of clarity and predictability if there is a right to appeal, which can also serve as a mechanism for the creation of case law, highlighting best practices in decision-making.