2017 to be the year of .AFRICA

On the 22nd of December, just as the entire domain name world was preparing to celebrate Christmas,  the Honorable Judge F Rodriquez  refused the application by the Dot Connect Africa Trust  for a preliminary injunction against the delegation of .AFRICA.

The decision notice is elegant and simple in its rationale.

“The Plaintiff’s motion for the imposition of a Preliminary Injuction is DENIED, based on the reasoning expressed in the oral and written arguments of defense counsel”.

Or in other words the court accepted the arguments of ICANN’s legal team in their entirety, and rejected all of DCA’s arguments.

Now, this doesn’t mean that DCA has lost the substantive case about its application.

But it does rather make the substantive case mostly irrelevant.

An injunction (whether temporary, preliminary or permanent) is an equitable remedy. Lawyers describe equitable remedies (as contrasted to legal remedies) as being discretionary.

This does not mean courts will agree or refuse them on a whim, of course. There is a settled body of  equitable principles which guides how such remedies may be granted.

One such principle is that relief will not be granted if damages would be a suitable legal remedy in the main case.

Clearly  if (and it’s a very big if) ICANN had done something wrong against DCA, DCA could claim damages — possibly large damages– for its losses.   But it never had a ‘right’ to be awarded the domain name. ICANN is not a government organisation, so there is no suggestion that its decisions can be judicially reviewed, in the way that (say) the award of a rail franchise by the Department of Transport could be.

ICANN will open for business today (3rd January) at around 4 or 5 o’clock European time.

In the light of the lifting of the temporary injunction, I would be very surprised if within the next few days that .AFRICA did not proceed to delegation in accordance with the contract already signed between ICANN and ZACR.

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