Contractual Waivers and Amendments Negotiating with ICANN

As applicants prepare for the 2026 round of ICANN’s New gTLD Program, attention is once again turning to the details of the base Registry Agreement and the possibility of seeking contractual waivers or amendments. While the foundational agreement provides a standardized framework for registry operations, applicants with unique business models, technical implementations, or regulatory requirements may find that strict adherence to its default terms could limit their operational flexibility or even render their business models unfeasible. ICANN recognizes this reality and has maintained a mechanism for contractual exceptions, but the process is complex, highly scrutinized, and requires a well-supported case for deviation from standard policy.

The Registry Agreement is the governing contract between ICANN and each registry operator, defining a wide range of obligations including service level commitments, data escrow, DNS abuse mitigation, public interest commitments, and more. It is designed to ensure consistent, secure, and fair operation across the global Domain Name System. However, not all registry applicants fit into a one-size-fits-all template. From .brand TLDs that intend to operate closed ecosystems with no third-party registrants, to community-based TLDs with specific eligibility and content restrictions, there are numerous scenarios where a standard agreement may not align with the applicant’s intended use.

In the 2012 round, ICANN introduced Specification 13 as an amendment path for .brand applicants, granting them exemption from certain requirements such as sunrise periods and open registration mandates. Specification 13 has since become a commonly sought addition for qualifying brand TLDs and remains available in the 2026 program. However, beyond this predefined amendment, applicants seeking bespoke changes must go through a formal waiver or amendment request process. This process involves submission of a detailed rationale to ICANN’s Global Domains Division, a public posting of the proposed amendment or waiver, and a public comment period during which stakeholders can weigh in on the proposed deviation.

ICANN’s evaluation of waiver requests is multi-faceted. The organization must consider whether the proposed change aligns with the overarching goals of DNS stability, competition, and public trust. It evaluates whether granting the amendment would create a competitive advantage that could undermine fairness or invite abuse. In addition, ICANN assesses the precedent that approval might set for future applicants. For these reasons, contractual waiver requests are rarely granted quickly, and often involve extended negotiations, clarifications, and occasionally escalation to ICANN’s Board if broader policy implications are involved.

Applicants must also recognize that requesting a waiver or amendment does not mean rewriting the contract to suit business preferences. Instead, ICANN expects applicants to justify the necessity of the change based on technical limitations, legal obligations, or unique public interest circumstances. For example, a registry proposing to operate a geographic TLD under the authority of a national government may need to request amendments to the public interest commitment framework or data retention obligations to comply with local laws. In such cases, the applicant must provide legal opinions, government endorsements, and detailed implementation plans to show that the waiver is narrowly tailored and enforceable.

A key consideration in the 2026 round is ICANN’s increased emphasis on transparency and consistency. In prior years, concerns were raised about the perceived opacity of the amendment negotiation process, particularly around .brand exemptions and the interpretation of public interest commitments. ICANN has since made efforts to formalize and publish the criteria under which waivers are granted. As a result, applicants in 2026 will be required to submit amendment requests through a more structured interface that includes predefined categories, impact assessments, and risk disclosures. ICANN will publish all amendment requests and decisions in a centralized repository, enhancing visibility and allowing future applicants to benchmark their own strategies.

It is also worth noting that registries already under contract with ICANN may seek post-delegation amendments as their business needs evolve. The 2026 round includes updated guidance for how existing registries can propose changes to their agreements, including requests to add new services, modify public interest commitments, or shift from open to closed models. Such changes, particularly when they affect competition or community dynamics, are subject to the Registry Services Evaluation Process (RSEP), which includes technical and legal review, public comment, and sometimes referral to ICANN’s competition authorities if antitrust implications are identified.

For new applicants, preparation is critical. Engaging with legal counsel experienced in ICANN contracts, participating in ICANN stakeholder groups, and studying previous amendment precedents can all help applicants anticipate challenges and build strong justification for their requests. It is also advisable to initiate informal dialogue with ICANN staff early in the application process to explore the feasibility of potential amendments and to understand the thresholds for approval.

The importance of stakeholder support cannot be overstated. If an amendment has the backing of relevant communities, industry coalitions, or governmental authorities, ICANN is more likely to view the request as legitimate and well-founded. Conversely, if an amendment is seen as self-serving or lacking transparency, it may draw opposition during the public comment phase and face significant hurdles. Therefore, applicants must not only construct technically and legally sound proposals, but also invest in outreach and dialogue to build consensus around their vision.

Contractual waivers and amendments in the context of the 2026 gTLD round reflect a balancing act between flexibility and policy integrity. ICANN’s regulatory role necessitates a high bar for deviation, but it also recognizes the importance of accommodating innovation, diversity, and legitimate public interest needs. For applicants, navigating this process requires not only meticulous preparation but also a deep understanding of ICANN’s institutional priorities and community expectations. When approached strategically and transparently, contractual flexibility can unlock powerful use cases that expand the utility of the DNS while preserving the principles that underpin its global governance.

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As applicants prepare for the 2026 round of ICANN’s New gTLD Program, attention is once again turning to the details of the base Registry Agreement and the possibility of seeking contractual waivers or amendments. While the foundational agreement provides a standardized framework for registry operations, applicants with unique business models, technical implementations, or regulatory requirements…