.Africa Cleared to Come Online as ICANN’s Lawsuit Waiver Is Upheld

icann domains

The long-awaited .africa domain has been cleared to become part of the internet after a lengthy litigation battle between an applicant for the domain and the non-profit that coordinates the domain name system. 

The California Superior Court has ruled that a “covenant not to sue” found in the .africa domain application likely bars claims by applicant DotConnectAfrica Trust against the non-profit Internet Corporation for Assigned Names and Numbers for alleged fraud and unfair business practices.  The court rejected DCA Trust’s bid to stop ICANN from granting competing applicant ZA Central Registry the rights to .africa until the case is resolved.

The court is the second to uphold an important piece of the legal framework underlying ICANN’s expansion of the domain name space.  Under the covenant, internet domain applicants agree not to challenge ICANN decisions in court.  They instead must rely on ICANN’s accountability mechanisms, such as the reconsideration and independent review processes.

ICANN said in a Feb. 9 statement that it will “now follow its normal processes toward delegation.”  A  DCA Trust spokesman declined a Bloomberg BNA request for comment.

The court cited the U.S. District Court for the Central District of California’s decision in Ruby Glen LLC v. ICANN that the covenant wasn’t unreasonable nor void under the California Civil Code.  Without the waiver any “frustrated applicant could, through the filing of a lawsuit, derail the entire system,” the district court had said in Ruby Glen.

The same district court had said in a previous ruling in the DCA Trust case that “serious questions” existed over the enforceability of the covenant.  It remains to be seen whether more challenges to the litigation waiver are in store.