[gnso-lockpdp-wg] FW: UDRP - Definition of 'pending'

[Marika Konings <marika.konings@xxxxxxxxx>]

Dear All,

Please find below the feedback received from my colleagues in the ICANN 
Compliance Department in relation to the term 'pendency'.

With best regards,

Marika

============

Thank you for seeking the Compliance team’s opinion regarding the definition of 
‘pending’ in the context of the UDRP.  While Compliance may have informally 
provided guidance to NAF and others in the past regarding our interpretation of 
the term ‘pending’, we are also interested in contract clarity and do not wish 
to go on record as providing an authoritative definition of this term.  We 
concur with the community that this term is ambiguous and we are pleased that 
efforts are underway to clarify the term.
Be advised that the word ‘pending’ appears five times in the UDRP (See 
paragraphs 4(f) and 8(a) and (b) – I pasted the relevant paragraphs below for 
your convenience).
The definition for ‘pending’ referenced in the transcript below, “from the 
moment the complaint has been filed”, could work in the UDRP text at paragraphs 
4(f), 8(a)(i) and the first sentence in 8(b), because those references to 
‘pending’ are clearly referring to the UDRP process.  However, the 
aforementioned definition of ‘pending’ does not work in paragraph 8(a)(ii) and 
the second sentence in 8(b) where the text refers to a ‘pending’ court 
proceeding or ‘pending’ court action or arbitration.  As you probably know, a 
court action or proceeding can be initiated by way of a motion and therefore 
the definition “from the moment the complaint has been filed” does not work in 
terms of describing ‘pending’ court actions or proceedings. Thus, any 
definition proposed must be broad enough to accurately define the word 
‘pending’ everywhere it appears in the UDRP.
EXCERPTS FROM THE UDRP
4.f. Consolidation. In the event of multiple disputes between you and a 
complainant, either you or the complainant may petition to consolidate the 
disputes before a single Administrative Panel. This petition shall be made to 
the first Administrative Panel appointed to hear a pending dispute between the 
parties. This Administrative Panel may consolidate before it any or all such 
disputes in its sole discretion, provided that the disputes being consolidated 
are governed by this Policy or a later version of this Policy adopted by ICANN.
8. Transfers During a Dispute.
a. Transfers of a Domain Name to a New Holder. You may not transfer your domain 
name registration to another holder (i) during a pending administrative 
proceeding brought pursuant to Paragraph 
4<http://www.icann.org/en/help/dndr/udrp/policy#4> or for a period of fifteen 
(15) business days (as observed in the location of our principal place of 
business) after such proceeding is concluded; or (ii) during a pending court 
proceeding or arbitration commenced regarding your domain name unless the party 
to whom the domain name registration is being transferred agrees, in writing, 
to be bound by the decision of the court or arbitrator. We reserve the right to 
cancel any transfer of a domain name registration to another holder that is 
made in violation of this subparagraph.
b. Changing Registrars. You may not transfer your domain name registration to 
another registrar during a pending administrative proceeding brought pursuant 
to Paragraph 4<http://www.icann.org/en/help/dndr/udrp/policy#4> or for a period 
of fifteen (15) business days (as observed in the location of our principal 
place of business) after such proceeding is concluded. You may transfer 
administration of your domain name registration to another registrar during a 
pending court action or arbitration, provided that the domain name you have 
registered with us shall continue to be subject to the proceedings commenced 
against you in accordance with the terms of this Policy. In the event that you 
transfer a domain name registration to us during the pendency of a court action 
or arbitration, such dispute shall remain subject to the domain name dispute 
policy of the registrar from which the domain name registration was transferred.