[CRISP-TEAM] Comment from Richard Hill Fwd: RE: [NRO-IANAXFER] Internet Number Community IANA Stewardship Proposal: Final Call for Comments

[Alan Barrett]

On Fri, 09 Jan 2015, Izumi Okutani wrote:
>My observations about each of Richard's point as below.

>1) Add more details of dispute resolution (III A.3.x.)
> - We agreed to stick to principles and leave it for RIR staff to
>   reflect the details, based on a suggestion on the IANAXFER list
> - If to address the concern the contract will be between five RIRs,
>   perhaps describe high level principles on the factors to consider in
>   deciding a place and arbitration scheme
>   (but is this a concern? How does it work for ASO MoU)

The ASO MoU 
<https://www.nro.net/documents/icann-address-supporting-organization-aso-mou> 
section 7 says:

    In the event that the NRO is in dispute with ICANN
    relating to activities described in this MoU, the
    NRO shall arrange arbitration via ICC rules in the
    jurisdiction of Bermuda or such other location as is
    agreed between the NRO and ICANN. The location of the
    arbitration shall not decide the laws to be applied in
    evaluating this agreement or such dispute.

The NRO MoU 
<https://www.nro.net/documents/icann-address-supporting-organization-aso-mou> 
section 10a says:

    In the event that an RIR is in dispute with the NRO
    relating to implementation of global policies, or
    with another RIR relating to the implementation of a
    coordinated policy, the NRO shall, at the request of
    one RIR, notify the others and arrange arbitration via
    ICC rules in the jurisdiction of Bermuda, or such other
    location as is unanimously agreed upon by each of the
    parties to the arbitration.

Neither of those MoUs specify a jurisdiction.

I suggest that we could edit the proposal to add some high level 
principles around the choice of arbitration venue (and perhaps 
also choice of legal jurisdiction).  John Curran provided some 
ideas that may be helpful to include as high level principles. 
John said:

>   From memory, I recall that Bermuda jurisdiction for
>   arbitration was proposed by the RIRs to ICANN (and
>   later used for the inter-RIR NRO agreement) due to the
>   following perceptions -
>
>      - A neutral venue totally independent of all the
>        parties, RIRs and ICANN.
>
>      - Allows for single location for arbitration of all
>        disputes, rather than needing to select venue based
>        on parties involved.
>
>      - Makes use of well-understood International Chamber
>        of Commerce rules.
>
>      - Has court system of recognized integrity with
>        international commercial arbitrations generally free
>        of court interventions
>
>   I do not know if any/all of the above were provable factors, 
>   whether any/all are still applicable, or even whether these 
>   are the best criteria for venue selection with respect to IANA 
>   contracting activities.  I supply the above only for purposes of 
>   providing some insight into history for the discussion in response 
>   to the request.


Now on to the second point in Izumi's summary of Richard Hills's
message:

>2) VI. Reflect low input in RIR processes
> - What are your thoughts?
> - Firstly, do you agree with this observation about low inputs?
>   This is true in case of APNIC region but what about others.
> - I am OK to reflect an observation on how much input was received
>   with explaining reasons; but
> - I don't agree with saying this wasn't bottom-up.
>   I don't think having low input (if true) equals no bottom-up.
>   There area reasons for this.
>   e.g.., most RIR communities are comfortable with the current IANA
>         operation and don't feel the strong urge to comment as there
>         is no direct NTIA involvement today

In the Afrinic region, there has been a reasonable amount of input.
I would not characterise it either as "low" nor "high".  There was
lively discussion at a face to face meeting, and not much discussion
on the mailing lists, except from one or two people who posted
several messages.  This is similar to the amount of discussion for
non-controversial regional policy proposals.

I think Richard Hill agrees that the process was a bottom-up
process, but "there weren't that many inputs from the bottom".

I think that we could edit the proposal to say something about the 
amount of input.

>3) Why the option of having NRO as an operator is not considered
> - He says some support was expressed for this option in some RIR lists
>   Any region which observed this?
>   (I don't this was the case in the APNIC region. It may be possible
>   someone outside the region may have mention which I overlooked but
>   certainly not a level of notable support or a recognition.)
> - He also asks for providing a reason why CRISP Team hasn't considered
>   this option. What are your thoughts?

I have not heard this idea before.  I think that we didn't consider it
because we hadn't heard the idea.

I think that no changes to the document are needed, but we can 
respond to Richard.

>4) Change in ICANN Bylaws for global PDP
> - We discussed it in CRISP Team call but agreed this is out of scope
>
> My summary of what was discussed: (corrections welcome)
> - NTIA doesn't play a role in gPDP
> - If RIR communities believe this should be reconsidered, it should be
>   discussed under the standard gPDP process.
>   It would not be appropriate for CRISP Team to break this existing
>   bottom-up process and propose something not related to NTIA
>   stewardship transition.

Agree.  A change might or might not be desirable, but it's out of scope
for the CRISP Team.

I think that no changes to the document are needed, but we can 
respond to Richard.

>5) Community cannot approve this part of the transition plan without an
>   SLA text
> According to my memory, this is what we discussed and agreed:
> - We agreed to put leave the high level principles as it is beyond the
>   scope of CRISP Team to define an actual SLA
> - We are not RIRs and developing a contract on behalf of RIRs would be
>   stepping outside of our role.
>
> I personally feel it would be helpful if we could say a little more
> than this, such as the idea is to have the SLA completed before the
> transition and we are listing high level principles as its reference.
> Then again, this may go back to the point discussed at the 9th call,
> we shouldn't mention anything we cannot be control/outside our role.

Richard Hill suggested that the absence of SLA text is a fatal 
flaw which means that the draft proposal does notmeet the ICG 
RFP requirements.  He said: "I don't think that this version is 
sufficient to constitute a proper response to the IGC RFP, because 
it does not provide the actual text of the new contract/SLA."

I disagree with his assessment.  The ICG RFP does say "in as 
much detail as possible" (under "Required Proposal Elements") 
and "If your community is proposing to replace one or more 
existing arrangements with new arrangements, that replacement 
should be explained and all of the elements listed in Section 
II.B should be described for the new arrangements."  (section 
III. "Proposed Post-Transition Oversight and Accountability 
Arrangements").  I think that saying there will be a contract 
including an SLA satisfies the requirement, and listing principles 
for the Contract/SLA adds more than enough detail.

I think that no changes to the document are needed, but we can 
respond to Richard.

--apb (Alan Barrett)