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

[Alan Barrett]

On Mon, 12 Jan 2015, Izumi Okutani wrote:
> 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.

I agree.

> 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.)

We could also say "arbitration in a neutral venue" without 
specifying "ICC".  I would be happy with specifying "International 
Chamber of Commerce (ICC) arbitration in a neutral velue" (I think 
that adding "ICC" probably does not impose too much constraint on 
the negotiations).  I think that specifying "Bermuda" would be too 
much detail, so we should not do that.

> 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)

I don't think we shoudl say which law will apply.  However, I 
think it's fine for us to say that the contract must specify 
which law will apply.  I am concerned that specifying that the 
law must be that of a "neutral jurisdiction" will impose too much 
constraint on the negotiations.

> 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.

I support the idea of saying that the RIRs must consult the 
community consult the community every step of the way.

--apb (Alan Barrett)