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The new Policy affords a noticeable amount of discretion to ICANN when deciding whether the applicant meets the set criteria; similarly, the Terms and Conditions seem to exclude any liability for ICANN and its decision-making processes. The new Policy uses words like 'sole and absolute discretion' in a repeated fashion; these concern issues such as the evaluation process of an application, the possibility for ICANN to terminate the registry agreement, to refund the fees to an unsuccessful applicant, etc. At the same time, ICANN is excluding its liability for various issues that raise more concerns: although ICANN says that it will offer a very secure system to 'ensure that confidential information remains confidential', at the same time, they 'offer no assurances that these procedures will keep an applicant's data confidential and secure from access by unauthorized third parties'. This raises issues of privacy and protection of personal information to which ICANN needs to respond.
More worryingly term 6 of the Terms and Conditions states: "APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED ON THE BASIS OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND ACCEPTS THAT APPLICANT’S NONENTITLEMENT TO PURSUE ANY RIGHTS, REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION SHALL MEAN THAT
APPLICANT WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN BUSINESS INFRASTRUCTURE OR OTHER START-UP COSTS AND ANY AND ALL PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A REGISTRY FOR THE TLD." This provides no leverage to the applicants against ICANN and leaves ICANN's decisions unchallenged by legal authorities – contrary to the UDRP, which allows court litigation.
The NCUC also believes that the costs associated with this process are extremely high.
a) $100 fee to access the application system
b) $185,000 to apply for a domain name
c) $50,000 for Registry Services Review Fee
d) $TBD to file Objection t
The NCUC is certain that the high costs will reduce the incentives for SME and entrepreneurs who, even if they have the incentive, will find it very expensive to apply, especially in light of the fact that ICANN reserves the right not to refund the money to the unsuccessful applications.
Finally, after the panel makes it decision to allow a domain name, the ICANN Board of Directors will still vote to approve or deny the domain name.

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