FAITID Comments on the Revised New gTLD Registry Agreement

[Maxim Alzoba <m.alzoba@xxxxxxxxxx>]

Dear Sir / Madam

FAITID respectfully submits its general comments on the revised version of the 
New gTLD Registry Agreement (RA) from February 5, 2013 and gives its reasons 
why it cannot accept the amendments proposed by ICANN in the last version of RA.

1) Article 2.9 (b)
ICANN reserves the right, but not the obligation, to refer any such contract, 
transaction or other arrangement to relevant competition authorities in the 
event that ICANN determines that such contract, transaction or other 
arrangement might raise competition issues.

To the best of our knowledge ICANN is not an authorized body, which may 
characterize the actions of an entity (organization) as a breach of antitrust 
laws.

2) Article 5.1
Mediation rules described in section 5.1, should be obvious to the Parties of 
the Agreement. Parties should be able to read these rules before signing this 
Agreement. Thus, public mediation rules must be created and everybody has to 
have the right to study these rules. It is also important that attorneys, 
performing the role of a mediator, have license to practice as an advocate in 
both jurisdictions of the Parties.

3)  Article 7.6 (c) "Special Amendment"
This paragraph may lead to the fact that ICANN will make an amendment into the 
text of the Agreement (unilaterally), which would be contrary to the norms of 
the applicant's jurisdiction legislation. In this case, it will cause material 
hardship to FAITID which contradicts AGB (Section 14 in Module 6):
Thus, changes made by ICANN only a few months before the scheduled launch of 
the first new TLDs, will force us to increase our resources and expenses.
Secondly, contractual negotiations would be non relevant due to the right of 
ICANN to re-draft all contracts unilaterally in one moment.

4) Specification 11
FAITID can not agree with paragraph 1 Spec. 11 because of the fact that the 
Foundation will be able to work only with the registrars signed the new version 
of RAA 2013 and it will cause a great material damage. Among other things, this 
provision is contrary to the financial model, in which the participation of all 
registrars is calculated and not only those who signed the not yet existent 
version of the RAA.

All business plans of all applicants of the new gTLD program (parts of all 
applications) and financial models were calculated with the idea of 
non-restricted access of registrars to the new gTLD Registries. Specification 
11.1 makes ALL business plans of ALL applicants irrelevant. We had to use 
historical data which was obtained on unrestricted access of registrars. Asking 
all of the applicants to change all their models at once, sounds dangerous and 
irrational (after one year of silence).

We can not agree with the text of paragraphs 2 and 3 of Specifications 11, 
because we can not sign an Agreement without knowing our rights and obligations 
under the PIC DRP and risks or penalties occurring in case of breach of this 
policy.

We are sure that last-minute amendments should not bring such serious changes 
to the contract. Approval of these amendments will cause material hardship to 
the applicants and will spread mistrust among the applicants towards the ICANN 
policy.

P.S: FAITID supports Registries Stakeholder Group (RySG) Comments on ICANN's 
Proposed Changes to the New gTLD Registry Agreement
http://forum.icann.org/lists/comments-base-agreement-05feb13/msg00019.html

Sincerely Yours,

Maxim Alzoba
Special projects manager,
International Relations Department,
FAITID

mail-to: m.alzoba@xxxxxxxxxx