[gnso-lockpdp-wg] Fw: ICANN GNSO Lock WG - Suspension Practice

["Roache-Turner, David" <david.roacheturner@xxxxxxxx>]

Dear All,

Please see below WIPO comments re suspension practice being here forwarded to 
the list.

Best,
David

From: Gray, Ty
Sent: Thursday, March 07, 2013 09:00 AM
To: Roache-Turner, David
Cc: Teng, Joanne
Subject: ICANN GNSO Lock WG - Suspension Practice

Dear All,

We have reviewed the proposal from Matt and note the benefits to the parties 
and concerned registrar which could flow from a clarification of the existing 
suspension and settlement practice vis a vis the lock of a domain name in a 
recommendation from this Working Group.  At WIPO we have historically seen 
approximately 20 to 25% of all UDRP cases since the year 2000 terminate 
following a suspension for settlement, and as such it would undoubtedly be 
advantageous to parties and registrars unfamiliar with the process to establish 
best practices or guidelines to clarify the unlocking procedure and develop 
party expectations for such process.

At WIPO, a suspension is typically requested by the complainant or the parties 
jointly, indicating that the parties request a determinate period of time to 
engage in settlement negotiations.  Following the receipt of such request, the 
Center as Provider would inform the parties and the concerned registrar as to 
the suspension period of the proceeding.  During the suspension, the disputed 
domain name may be unlocked, provided it is to enable the implementation of a 
settlement agreement between the parties to transfer the domain name from the 
respondent to the complainant, only.  The Policy does not make any provision 
for the Center, as neutral Provider, to participate directly in settlement 
negotiations, and in any event the Center is not in a position to implement any 
agreement to transfer or cancel a domain name.

After suspending the proceedings, the Center would typically either receive a 
confirmation from the complainant or parties that the domain name was 
transferred to the complainant (or cancelled) and that the proceedings may be 
withdrawn or terminated, or we would receive a request to reinstitute the 
proceedings.

We do not see any problem per se in confirming to the registrar the receipt of 
a communication or document from the complainant and the respondent/registrant 
(noting that such would preferably be associated with the registrant’s details 
in the WhoIs or confirmed to us from the registrar) evidencing an agreement to 
transfer the disputed domain name to the complainant or cancelling the domain 
name, and on that basis noting that the registrar may unlock the domain name in 
order for this element of the settlement agreement to be implemented.  However, 
our role as Provider (whose function is limited to administering the proceeding 
under the UDRP) would not provide us with the power to order the registrar to 
transfer or cancel the disputed domain name (a power which has been reserved to 
the duly appointed Administrative Panel in its Decision upon consideration of 
the substantive elements of a case and any relevant issues of law).

As this is a well-established practice, we feel that it would be most 
advantageous to capture as a best practice or guideline the process which is 
working in nearly all cases (indeed, we note that almost all questions we do 
receive concerning suspension and settlement involve an understanding of the 
process itself, which may be addressed by such recommendation from the Working 
Group).  We would not oppose a recommendation which would include an optional, 
supplemental Provider confirmation of receipt of settlement communications from 
the parties if a registrar would find this helpful, but we feel such 
recommendation should preserve as a requirement the process which is commonly 
utilized in practice.

Sincerely,

Ty Gray, with regards from David Roache-Turner
WIPO Arbitration and Mediation Center




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