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

Izumi Okutani izumi at nic.ad.jp
Wed Jan 7 08:21:31 CET 2015


Hi Nurani,


> 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?

Very good point and strongly agree.

Actually, I was intending to do that together with updated issues list
and haven't gotten round, trying to do the update.

I think we should do it early, so will actuall do that, with the current
list I have (it's still missing JPNIC comment but can explain that).

> 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 for this input. Appreciate it.


Izumi

On 2015/01/07 16:11, Nurani Nimpuno wrote:
> 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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>>
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> 





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