[CRISP-TEAM] CRISP Team position per issues discussed at the 11th call Re: Summary of Discussions point for each issue
Izumi Okutani
izumi at nic.ad.jp
Mon Jan 12 17:08:41 CET 2015
CRISP Team,
Thank you for staying for the extended call for 2 hours today.
Please confirm summary of the CRISP Team position discussed at the 11th
call.
Your comment before the 12th call, at UTC13:00 13th Jan is very much
apprreciated if you have any other comments, different from what is
described below.
Thanks,
Izumi
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a. Dispute Resolution
--------------------------------------------------------------------------
(Richard Hill)
Speficying a place of jurisdiction:
(1) the community should give some guidance and
(2) the community should have the opportunity to comment
on whatever the RIR legal team comes up with.
[CRISP Team postion]
Will add description in the final proposal to the ICG that the SLA
document will be consulted to the relevant community.
[CRISP Team volunteer for text suggestion]
Andrei will work on drafting the suggested text.
This should cover the entire SLA not just the juridiction part.
(Richard Hill)
Dispute resolution:
[CRISP Team postion]
Will not make text changes from the second draft below:
"x. Resolution of Disputes
Principle:
Disputes between the parties related to the SLA will be resolved
through arbitration.
Relevant section(s) in the NTIA contract:
N/A"
Reason:
The CRISP Team is not leagal expert. It is not appropriate to
sugest a concrete arbitration mechanism at this stage and narrow an
implementation option with sufficient expertise knowldege.
It is premature to judge we apply the same arbitration mechanism as
in the existing MoU, and there was disagreement/concern about the
use of the word "neutral". There is likely to be more appropriate
legal word to use, to capture this point.
[CRISP Team volunteer to explain on the IANAXFER list]
- Izumi Okutani
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b. Details of the SLA
--------------------------------------------------------------------------
(Richard Hill)
- 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.
(Jim Reid)
- skeptical about the practicality of a single contract between the
IANA operator and 5 RIRs in a post NTIA world.
[CRISP Team postion]
- Richard Hill's point is partially addressed by the community
consultation of SLA as decribed in a. "Speficying a place of
jurisdiction", to be drafted by Andrei
- Same for Jim Reid's point.
[CRISP Team volunteer to explain on the IANAXFER list]
- Izumi Okutani
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c. Mou/contract + necessicy of the contract
--------------------------------------------------------------------------
(Pinwar Wong and Seun Ojedeji)
- Not sure if the contract is the best available option than MoU, for
example
[CRISP Team postion]
- The contract is the best option for its legal bindings and to
replace the IANA-NTIA contract
- No changes in the proposal text
[CRISP Team volunteer to explain on the IANAXFER list]
- Craig Ng
-------------------------------------------------------------------
d. Selection of Review Committee
--------------------------------------------------------------------------
(Seun Ojedeji)
Making the suggestion below:
- uniforum membership requirement
- uniform selection process
[CRISP Team postion]
- Selection requirements should be left to indivisual RIR region, as
what is considered to be most appropriate for that region
(rather than one size fits all approach)
- There should be equal representation from each RIR region
[CRISP Team volunteer for text suggestion]
- Izumi has sent the text suggestion to the CRISP ML
""
[Currently suggested text]
---
The selection of the Review Committe members should be conducted in an
open, bottom up and inclusive mechanims, appropriate for each RIR
region. There should be equal representation from from each RIR region
inconstituting the Review Committee.
---
(Seun Ojedeji/Alan Barrett)
Use of the word NRO:
- Should it be replaced with RIRs?
[CRISP Team postion]
- Use the word RIRs for Review Committee Section
- Desirable to do the same in other sections for consistency but
need to check with the context of each sentence.
[CRISP Team volunteer for text suggestion]
- Alan
(list all the parts which uses the word NRO and suggest an
alternative if needed)
(Jim Reid)
- Probably needs to be wider than just those drawn from the RIR
communities.
- IANA and possibly the IETF's interests should be represented in this
committee too.
[CRISP Team postion]
- Disagree with the suggestion, as this is the Review Committtee,
only for the number resources function which doesn't need
coordination with other functions.
[CRISP Team volunteer to explain on the IANAXFER list]
- Izumi Okutani
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e. Budget Review
--------------------------------------------------------------------------
(Seun Ojedeji)
- There is no section talking about budget review in the second
draft.
- I understand 800k+USD is contributed annually to ICANN by all
RIRs, may I know if ICANN presents annual budget specifically for
this contribution? If yes who does the review? If no then I suggest
it be incorporated in our proposal and I think it's something NRO NC
can do
[CRISP Team postion]
- No changes wil be made to the proposal text
- John Curran has provided explanation of the situation today
- Contribution to ICANN as and organization and fees for IANA operator
conract is a different element which shoud be understood seperately
- Explain this is an issue to be discussed between RIRs and IANA
function operator with consideration to factor such as covering the
cost
[CRISP Team volunteer to explain on the IANAXFER list]
- Izumi Okutani
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On 2015/01/12 21:56, Izumi Okutani wrote:
> CRISP Team and German,
>
>
> My apologies for my very last minutes sharing of this before the call.
> I compiled all the points raised on the CRISP Team ML and the current
> status of our discussions, in case we want to see them in details at the
> call.
>
> a. Dispute Resolution
> b. Details of SLA
> c. Mou/contract + necessicity of the contract
> d. Selection of Review Committee
> e. Budget Review
>
> ------------------------------------------------------------------------
> a. Dispute Resolution
> ------------------------------------------------------------------------
> (Richard Hill)
>
> Additional description about dispute resolution: arbitration scheme.
>
> 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"
>
> (CRISP Team ML)
> No agreement on the suggested alternatives.
>
> May be OK to simply state "arbitration in a neutral venue" without
> specifying a scheme.
>
>
> applicable jurisdicition
> (Richard Hill)
> 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.
>
>
> (CRISP Team ML)
> General agreement on the direction to cosult the RIR communities about
> the SLA but not at every step.
>
> Two text suggestions.
>
> "RIRs must consult the community before the contract is finalised." OR
>
>
> "It is the expectation of the community that the contract between RIRs
> and any future IANA operator shall be drawn with consultation with the
> RIR community".
>
> ------------------------------------------------------------------------
> b. Details of SLA
> ------------------------------------------------------------------------
> (Richard Hill)
>
> SLA text/format
> - 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.
>
> (Jim Reid)
> He is skeptical about the practicality of a single contract between
> the IANA operator and 5 RIRs in a post NTIA world.
>
> (Gerard Ross)
>
> Do we want to express support for this point, when sharing our
> conclusion about SLA that we considered under this spirit?
>
> ----
> In considering about the details of the SLA to be included, the CRISP
> Team thinks below is as a fair description, reflecting mentality and
> realities of how our the number resources community work.
>
> Our position, xxxx (describe our conclusion) is based on how the number
> resources community works as described by a community member.
>
> - it is necessary to distinguish between what is necessary for
> operational certainty and what is negotiable for pragmatic implementation.
>
> the bottom up process, the community of interest discusses and develops
> consensus on a set of principles for the topic at hand. The specific
> implementation of those principles into operational details is delegated
> to a working group, committee, or organisation. That delegate reports
> openly and regularly, so that the community can review and refine.
>
> - this current process indeed shows the bottom up processes of the
> technical community at work. All of the participants are drawn from and
> answerable to their respective communities, all operating in the
> knowledge that eyes are upon them.
>
> In the current context especially in the available timeline the focus
> must remain on the essential principles of numbering resource
> stewardship. To over-specify the implementation would risk derailing the
> essentials.
>
> - For the CRISP group to put forward the contract by which the
> transition must proceed would put this process at risk (not to mention
> that it would be an act of unilateralism, vis-a-vis the IANA operator,
> that is antithetical to the Internet model)
>
> ------------------------------------------------------------------------
> c. Mou/contract + necessicy of the contract
> ------------------------------------------------------------------------
> (Pindar Wong + Seun Ojedeji (Jim Reid?))
>
> Not sure if the contract is the only option.
> ----
> There should be written agreement(s), i.e. it should be documented and
> public but it is unclear to me what's the 'best' way to express that
> agreement (as it depends on how you define 'best'). Normally that would
> evolve from an MoU to form of a legally binding contract and the current
> draft, to my eye, uses 'agreement' and 'contract' somewhat interchangeably.
> But we're dealing with the Internet that constantly evolves, so 'best' to
> me are those mechanism and structures that retain some flexibility. If the
> relationship breaks down then there may be greater fires to fight and
> arbitration/lawyers may not help you (and might even make things worse).
> I don't seeing anyone going after damages for breach of contract.
>
> As you know the RIR's have been around longer than ICANN. FWIW it's my
> view that the series of signed 'ASO MoU's have worked well (1999
> <http://archive.icann.org/en/aso/aso-mou-26aug99.htm>, 2004
> <http://archive.icann.org/en/aso/aso-mou-29oct04.htm>) thus far.
>
> In the 1999 there was something to do with:-
>
> 'Nothing in this MOU is to be read as giving the ASO or the Address
> Council any role in the contracts between individual RIRs and ICANN.'
>
> So there was always room for formal contracts to emerge if needed. Maybe
> now's the time. I don't see the dated ASO MoU as being terminally broken...
> so what's going to happen to it? I presume it will be superceded by the
> contract.
>
> I'm a fan documents that are relatively simple, straightforward and the
> MoU approach (as was also used between the RIR's with the NRO MoU
> <https://www.nro.net/documents/nro-memorandum-of-understanding>. )
>
> also recall
>
> 'Nothing in this MOU shall be construed to create between or among any of
> the parties a partnership, joint venture, or impose any trust or
> partnership or similar duty on any party, including as an agent, principal
> or franchisee of any other party.'
>
> This will/will not change under contract? I haven't the foggiest idea.
> ----
>
> ------------------------------------------------------------------------
> d. Selection of Review Committee
> ------------------------------------------------------------------------
>
> Selection of Review Committee
>
> Seun Ojedeji has asked us a question on why our draft proposal doesn't
> specify the Review Committee will be selected in the manner similar to
> NRO NC. He doesn't seem to have further comments for my explaination and
> making the suggestion below:
>
> - uniforum membership requirement
> - uniform selection process
>
> My observation is that this should be left to each RIR region.
>
> However, we can perhaps state a common principle in the selection of the
> Review Committe such as :
>
> ---
> The selection of the Review Committe members should be conducted in an
> open, transparent, bottom up process, appropriate for each RIR region.
> There should be equal representation from from each RIR region in
> constituting the Review Committee.
> ---
>
> Use of the word NRO:
>
> - Should it be replaced with RIRs?
> - Alternative: (no strong position)
> NRO (a coordinating body for the five)
> NRO EC (The chief executives of the five RIRs)
>
> Jim Reid:
> - Probably needs to be wider than just those drawn from the RIR
> communities.
> - IANA and possibly the IETF's interests should be represented in this
> committee too.
>
>
>
> ------------------------------------------------------------------------
> e. Budget Review
> ------------------------------------------------------------------------
>
> Budget Review
> I observed there is no section talking about budget review in the second
> draft. I understand 800k+USD is contributed annually to ICANN by all
> RIRs, may I know if ICANN presents annual budget specifically for this
> contribution? If yes who does the review? If no then I suggest it be
> incorporated in our proposal and I think it's something NRO NC can do
> (yeah yeah I know I may hear the policy vis operation separation thing
> again.... Sign. )
> ------------------------------------------------------------------------
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