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

[Nurani Nimpuno]

Hi Izumi,

First a separate comment:
I realised that we didn't send out an announcement to the list that we were closing feedback on the first draft. This might be important to do for the next steps. 

Maybe it's still useful to remind the list of the timeline and when the second draft will be published? What do you think?

As for your question, I agree that it is useful for us to restate our position (grounded in discussions within our communities) and particularly reasoning before the publication on the second draft. 

Thanks,
Nurani

On 7 jan 2015, at 00:58, Izumi Okutani <izumi at nic.ad.jp> wrote:

> 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
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