[NRO-IANAXFER] Contract details

Richard Hill rhill at hill-a.ch
Tue Jan 6 16:49:28 CET 2015


Dear Seun,

In many jurisdictions, the title of a document (MoU, contract, convention, or whatever) does not determine its legal effects.  What determines its legal effects is the content of the document.  So something labelled MoU might, in some jurisdictions, be a contract.

In order to avoid uncertainly, it seems better to me to label the document contract. And to be sure that none of its clauses are inconsistent with the law of the jurisdiction of the contract.  Although I don't recall a discussion of the matter, I presume that the new contract will contain a choice of law clause, so it will be clear what law applies.

Best,
Richard
  -----Original Message-----
  From: ianaxfer-bounces at nro.net [mailto:ianaxfer-bounces at nro.net]On Behalf Of Seun Ojedeji
  Sent: mardi, 6. janvier 2015 16:39
  To: Filiz Yilmaz
  Cc: ianaxfer at nro.net
  Subject: Re: [NRO-IANAXFER] Contract details


  Hi Filiz,


  I like to comment on few sections of your comment...kindly find inset



  On Tue, Jan 6, 2015 at 1:33 PM, Filiz Yilmaz <koalafil at gmail.com> wrote:

    Hello,


    In the the context of policy coordination matters, such as in ASO/NRO/ICANN Board setting, a MoU serves well, I agree, but that is a separate case and I do not think an MoU will suffice in a specific-service-providing setting as in this case...........A contract is legally more binding then an MoU 


  Could you clarify why you think contract is more binding than MoU? It seem you are implying that the MoU between NRO and ICANN is not as legally binding?


    and a renewable contract ensures there is a check mechanism for the parties involved in any contract, both for IANA operator and the RIRs in this context.


  And you don't think those "check mechanisms" can be written in a MoU?


    Otherwise a timeless contract will be legally too binding for all involved.


  Okay i think this is absolutely off my radar of understanding(i am not a lawyer) perhaps you could kindly explain what you mean by the statement above.



  Regards    





    On Tue, Jan 6, 2015 at 11:56 AM, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

      Hello Alan,


      Coming back to you on this now that i have some time. Kindly find inset



      On Mon, Jan 5, 2015 at 2:23 PM, Alan Barrett <apb at cequrux.com> wrote:

        On Fri, 02 Jan 2015, Seun Ojedeji wrote:

            In my personal opinion, it doesn't matter whether it's a fixed term with periodic renewal, or an indefinite term, provided there's provision for immediate termination upon breach of contract or failure to meet SLAs.

          I think there may be a difference in the 2 scenario as periodic renewal will mean initiating a process at the end of each fixed term(which could require some level of resources). As you have rightly mentioned above, providing termination conditions on the basis of SLA is what is most important, so an indefinite term similar to the MOU that established ASO would not reduce the strength of the agreement but could save us some resources.


        We discussed this in the CRISP Team teleconference today.  We think that a fixed term (with provision for periodic renewal) makes more sense for a few reasons:



      Well it depends on how we view "making sense" in this context because the NRO/ICANN MOU is not term based neither is RFC2860 and it does not in anyway diminish the possibility of achieving what you have listed below.


        - renewal should not consume much additional resources over and above
          the periodic review which will be done in any case;



      I wonder what other periodic review is refereed to here other than reviewing the SLA; could you kindly clarify the review you refer and what that will entail?


        - it makes it easier to revise the SLA from time to time;



      Well i don't agree that you need to have a term based contract to revise SLA at least(unless i missed something) the IETF SLA is revised annually to supplement the MOU


        - it makes it possible to terminate the contract for reasons other
          than breach.


      Maybe you should state the other reasons (different from the ones stated in the agreement) that will justify that having a termed based contract is ideal, otherwise i think the content of the agreement is what in important.


      In anycase, its okay if that is what achieves consensus. However, i think i should note that this community is quite matured and may not need this level of un-necessary bureaucracy; we should continue to be an example for other communities.


      Regards


        --apb (Alan Barrett)

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        Seun Ojedeji,
        Federal University Oye-Ekiti
        web:      http://www.fuoye.edu.ng
        Mobile: +2348035233535
        alt email: seun.ojedeji at fuoye.edu.ng


          The key to understanding is humility - my view !




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    Seun Ojedeji,
    Federal University Oye-Ekiti
    web:      http://www.fuoye.edu.ng
    Mobile: +2348035233535
    alt email: seun.ojedeji at fuoye.edu.ng


      The key to understanding is humility - my view !


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