[CRISP-TEAM] Dispute Resolution and details of SLA: Comment from Richard Hill Fwd: RE: [NRO-IANAXFER] What would be helpful when sharing your input

Mon Jan 12 09:12:33 CET 2015

CRISP Team,

As you can see, comment from Richard Hill is not narrowed to Point 1)
and Point 5) which are about dispute resolution and including details of
SLA.

(No further comments on 2) 3) and 4) listed in my posting to IANAXFER
list , so I think we can assume they are resolved - unless other
observations from CRISP Team)

Personally, I am not sure whether these points are a must to be included
in the proposal to be submitted to the ICG. Richard Hill has expressed
he supports the general proposal elements in our proposal.

In general, we should be clear in not incorporating points which we
disagree/have concerns in incorporating. If this is the case, we simply
describe in Section VI, the point where disagreement was observed,
withough incorporating the point, where majority of the community
members expressed opposition to address.

On the otherhand, we also want to have a condition as much as possible,
to have reached an agreement on most issues before submitting to the
ICG. Therefore, if there is a point where there is no strong concern in
incorporating, my preference is we consider to incorporate it in the
draft, to reach a condition that most points in our proposal reached an
agreement in our community.

Below is my observation based on this thinking.

I would very much appreciate your feeback before the call if possible
and also during the call today at UTC13:00 12 Jan.

1) Additional description about dispute resolution

a. For arbitration mechanism

Either:
- specify the same arbitration clause that is in the present MoU,
  namely "ICC arbitration in Bermuda"  OR
- Alternatively,  "ICC arbitration in a neutral venue"

b. Specification of the substantive law that will apply to the new
contract/SLA.
- He is suggesting (1) the community should give them some
  guidance and (2) the community should have the opportunity to comment
  on whatever the RIR legal team comes up with.
- For (1), suggest that the proposal include something to the effect
that the contract will include a clause specifying that the substantive
law that applies to the contract will be that of a neutral jurisdiction.

For 1) a. I'm personally OK to add  "ICC arbitration in a neutral
venue". (Unless this narrows considerations too much, for RIR legal
staff at the time of implementation.)

For 1)b. I'm OK to include in the proposal "to the effect that the
contract will include a clause specifying that the substantive law that
applies to the contract will be that of a neutral jurisdiction". (May be
obvious but I see no harm)

What are your thoughts?

I also have additional question to CRISP Team,

It seems that there are comments not just Richard, which seem to have
expectation that RIR will consult about SLA document with the community.
Is this something we want to described in

2) SLA text
 - A preference is that the draft text be contained in the proposal
   submitted. OR
 - As an alternative, he could accept some mechanism whereby the
   community, including this list, is asked to comment, at a later
   stage, on the text of the contract/SLA.

He could accept some mechanism whereby the community, including this
list, is asked to comment, at a later stage, on the text of the
contract/SLA.

What are your thoughts?

I have mixed feelings. I have no issue if it is the usual process of
document review, under the standard RIR process, before implementing
documents. It may also be good to allow a way for RIR staff/board to
consult the community, if they need in drafting it. However, if the idea
is for the communty to take the main initiative, we may have the same
concern as this time, that non legal experts giving inputs.

Izumi

-------- Forwarded Message --------
Subject: RE: [NRO-IANAXFER] What would be helpful when sharing your input
Date: Sat, 10 Jan 2015 23:34:04 +0100
From: Richard Hill <rhill at hill-a.ch>
Reply-To: rhill at hill-a.ch
To: Izumi Okutani <izumi at nic.ad.jp>, ianaxfer at nro.net

Dear Izumi,

Thank you very much for this thoughtful reply, and please see embedded
comments below.

Best,
Richard

> -----Original Message-----
> From: ianaxfer-bounces at nro.net [mailto:ianaxfer-bounces at nro.net]On
> Behalf Of Izumi Okutani
> Sent: samedi, 10. janvier 2015 21:53
> To: ianaxfer at nro.net
> Subject: Re: [NRO-IANAXFER] What would be helpful when sharing your
> input
>
>
> Dear Richard and all colleagues,
>
SNIP

> -----
> 1) Add more details of dispute resolution (III A.3.x.)
>
> Some comments expressed support that arbitration is an important area to
> get it right. Description is there in the second draft as ""Disputes
> between the parties related to the SLA will be resolved through
> arbitration."
>
> However, there is disagreement about the level of details required.
>
> Perhaps, Richard's concern is that if we are not specific enough, we may
> have the dispute resolution and arbitration process which is not
> appropriate for the RIRs (and the IANA operator). I agree it is
> important to ensure this not to happen.
>
> At the same time, it seems to me that it is common consideration for the
> mechanims and place of dispute resolution and abitrabtion to be  neutral
> to all parties, applicable in all appropriate jurisdictions and
> pragmatic to be able to use the process. I'm sure RIR legal team will
> take this point into consideration without having to explicitly say so
> (as several other people have expressed).

Yes, I'm sure that the RIR legal team will do that, and I understand that
people on this list are not comfortable specifying details of an arbitration
clause, but I still don't understand why the document that goes to the ICG
should not specify the same arbitration clause that is in the present MoU,
namely "ICC arbitration in Bermuda".

Alternatively, as a compromise, I could accept "ICC arbitration in a neutral
venue".

There is another point that I've raised which has not been much discussed to
date: specification of the substantive law that will apply to the new
contract/SLA. I would suggest Swiss law, but I can understand that others
might have other preferences.  Again, the RIR legal team can surely work
this out, but I still think that (1) the community should give them some
guidance and (2) the community should have the opportunity to comment on
whatever the RIR legal team comes up with.

Regarding guidance, I would suggest that the proposal include something to
the effect that the contract will include a clause specifying that the
substantive law that applies to the contract will be that of a neutral
jurisdiction.

>
> -----
> 5) Community cannot approve this part of the transition plan without an
>    SLA text
>
> Richard is not comfortable unless draft of SLA text will be annexed as
> reference in the proposal to be submitted to the ICG, for RIRs'
> consideration as the devil is in the details.

My preference is that the draft text be contained in the proposal submitted
to the ICG.  As an alternative, I could accept some mechanism whereby the
community, including this list, is asked to comment, at a later stage, on
the text of the contract/SLA.

>
> Several comments expressed that the community is comfortable with
> leaving the details to RIRs staff, as long as the principles to be
> included in the SLA are described. An observation was made that the
> number resources communities are not lawyers and better to leave this
> part to legal experts.

In my experience, it is usual for the business experts to outline the main
elements of a contract, for the lawyers to draft the details of the
contract, and for the business experts to review what the lawyers have
drafted.

So I don't understand why the third step should be omitted in this case.

>
> It seems to me that both Richard and people who claim to delegate the
> details to the executives of the RIRs and its legal team share the same
> motivation: to get the right contract which appropriately serves the
> number resources community.
>
> When thinking about what would be the best way which helps us develop
> the contract which effectively serves this purpose, it seems that it is
> the best to leave it to experts, i.e., RIR legal team, who will be
> explicitly gather for this purpose of developing the SLA (the CRISP Team
> has members with legal expertise but the Team as a whole is not a group
> of legal experts who are called for this purpose). This allows the
> contract to be considerd from several options of implementations per
> principle raised and describe what best suits the purpose.
>
> I agree with Richard on the point that it is common practice for
> business people takes a look at the contract developed by a legal
> expert. In this case, RIR executives and Board will serve this role, as
> John Curran has described. RIRs should know what serves them best in
> what they need as the direct stakholers in this function.
>
> Would this summary address your concern Richard?

No, I think that the global multistakeholder community (to which NTIA wishes
to transition the current role played by the NTIA) should have the
opportunity to comment on and endorse the contract.

NTIA commented on and endorsed the current IANA functions contract, so the
global multistakeholder community should have the same opportunity.

>
> If it doesn't, it would be helpful if you could describe what would the
> concern you have with this approach, in developing the contract which
> best suits the needs for the number resources function.

I have no doubt that the RIR legal team will develop an appropriate
contract, but I have trouble understanding why that contract should not be
submitted for review and endorsement to the community as a whole.

> -----
>
> Best Regards,
> Izumi Okutani
>
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