[CRISP-TEAM] Fwd: Re: [NRO-IANAXFER] Contract details

[Izumi Okutani]

CRISP Team,


As you can see there has been continued discussions on Contract details
and going into more details of the agreement.

Before we publish the second draft, I feel we should perpaps re-state
our position. I quoted Mwendwa's point made on the chat during the call.

What are your thoughts?

Being after the comment period and this is the phase we want to focus on
preparing the draft, I'd like to hear your feedback on whether this
would be an appropriate approach.

If not feedback from CRISP Team until UTC 7:00, I'll post this on the
IANAXFER list.



Thanks,
Izumi


-----

Going back to the initial point where this discussions started, we
discussed Seun's comment that having no fixed term may reduce resources
for updating the contract. It was observed that this is not likely to be
a major concern.

The statement below may perhaps well reflect the general discussions by
the CRISP Team.

A fixed contract is good because it gives us a point in time to reflect
and access the performance of the IANA operator, and if the RIR
community have any issues with the IANA operator and the SLA is not
sufficiently met, we can have options to either continue with this
operator or look for a new operator.

Weighing between not to consume additional resources (where it was
observed it is not a concern including by members with legal background)
and  we should have the more clear option of not renewing if we're not
happy with the service or wish to explore different providers as
described above, it was agreed that we consider the latter element as
higher priority.

I hope this clarifies the considerations made by CRISP Team.


-----

-------- Forwarded Message --------
Subject: Re: [NRO-IANAXFER] Contract details
Date: Tue, 6 Jan 2015 20:49:35 +0100
From: Gordon Lennox <gordon.lennox.13 at gmail.com>
To: ianaxfer at nro.net

I have been involved in dealing with various forms of agreements over
the years - contracts, MoUs and treaties - and almost always in
international setting. So maybe I can add a little.

Agreements can be legally binding without all the paraphernalia that
many people presume is necessary. A contract after all is just an offer
and an acceptance of that offer. What constitutes an "offer" and what
constitutes "acceptance" can though vary enormously between cultures and
jurisdictions.

It has also been said though that it is the content that matters. I very
much agree with that, particularly in an international setting. Certain
terms  - agreement, MoU, contract? - can be useful of course. But it is
particular content that really matters. and that content concerns what
happens when the parties disagree.

Drafting an agreement is a bit like writing software. You needed to have
a clear objective, an intent. You need to define certain terms. You need
to define  a process. You need to define what happens with problem cases
and errors. Nobody though can take care of all the problem cases or
errors and so there has to be an understanding on what happens then.

So an MoU says something like: this document is not legally binding; the
parties cannot be held responsible for the actions of other parties; the
parties cannot be held responsible for costs of any kind incurred by
other parties; parties can simply disassociate themselves from this
agreement by <define process>.

A contract then says something like: this document is legally binding;
the parties are individually and collectively responsible towards other
parties <up to a certain amount? >; in the event of a disagreement
between the parties the following (binding?) arbitration procedure <here
defined> will be used; in the event of continued disagreement then the
following (identified) courts in a particular jurisdiction will be
competent.

Given the oft stated aim to internationalise this area and the frequent
concerns expressed about US dominance it would be bizarre if it was a US
court  - in California? - that was now identified.

Then the question of a renewable agreement. I think having an agreement
that is renewable or having functions that are somehow transferable
would make much of this more palatable to many people. However hard
experience has shown that the process to renew or transfer has to be
very clearly built in from the beginning. I would go as far as to say
that an agreement ought not be signed until it is clearly understood how
the required functions could be transferred. So the process for
negotiating a new agreement with the same party or another party, either
because of a date defined in the original agreement or because of a
disagreement, or the process for the possible transfer of functions to a
new party has to be thought about now and defined in some detail.

Gordon
_______________________________________________
ianaxfer mailing list
ianaxfer at nro.net
https://www.nro.net/mailman/listinfo/ianaxfer