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

[Nurani Nimpuno]

On 12 jan 2015, at 09:39, Alan Barrett <apb at cequrux.com> wrote:

> 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.

I agree to include that disputes will be solved by arbitration. 

But I am very reluctant to include anything more than that. For two reasons:

1. I am not a lawyer, I can't really motivate arguing for one venue over the other. I am also not familiar with what a "neutral venue" entails. (I do not see it as my role in CRISP or within my area of competence.) I think it is much more appropriate to leave this to the RIR lawyers. 

2. We have not received broader community input on this detail. They have not advised us to include it or to specify details on arbitration or venue. So including this only to satisfy one voice, is not inline with our bottom-up process. Again, I think details such as these should be defined by the RIR lawyers.

As a general point, I also think we should not include anything that may impose unnecessary or unforeseen restrictions the RIR legal teams. 

>> 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.

I don't think it is up to us to say which law will apply. For the same reasons as I make above.
(Sure we can say that the contract must specify which law will apply, but unless we think the RIR lawyers are not particularly competent, I think we can assume that this will be included.) 

>> 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.

I think there should be some language about consultation with the community. "Every step of the way" sounds a little overbearing to me, but we can discuss language. I think we are in general agreement.  

Nurani


> 
> --apb (Alan Barrett)
> 
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