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

[Izumi Okutani]

Thanks Alan for your comment.

I genarally agree with all your points/observations and my comment inline.

On 2015/01/09 17:04, Alan Barrett wrote:
> 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 see. Thanks for clarifying this.
It was useful reference for me while may be obvisous to several CRISP
Team members.

> 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:

I'm good with that approach.
(as you can observe from my comment.)

>>   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.


Noted. Thanks for sharing this as well.

> 
> 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.

Understood.

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

Yes, that is the same as my understanding.

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

Agreed.

>> 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.

Same as my situation while Nurani has shared background about this idea,
which I found was useful.

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

I agree.

>> 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.

Yes, I suggest the same.

>> 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.

This is a useful point to clarify.
Thank you for bringing this up.

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

Noted about your position. I would like to make one clarification
related to this as described in my response to Nurani, and would to have
more discussions at the call (& e-mail if people want to respond).


Izumi