[NRO-IANAXFER] Contract details

Filiz Yilmaz koalafil at gmail.com
Tue Jan 6 19:16:43 CET 2015


Hi Seun,

I am not a lawyer either and I am glad having a law degree is not a
requirement to be able to have this discussion on this list.

In principle, to my knowledge, as Richard mentioned, any signed document is
binding as much as its content.

Having said that, MoUs are *often* used to document intentions of parties
and need not contain legally enforceable promises. There are various
resources on the Internet talking about this possibility and hence why
lawyers often would not prefer an MoU but a contract.

Now since we are talking about the IANA operator contract and so far it had
been named as a contract under NTIA's oversight, I think it is wise to keep
it simple and continue using the word "contract", instead of an MoU,
especially if there is also intention to refer to legal terms and
obligations or some specific jurisdiction.

Other than this, IANA operator is to serve certain services to RIRs. In the
context of such operational services, I think a contract is a better fit
than an MoU. And I think the MoUs you have referred to (without an end
date) in your mail are different in their nature in this respect too.

I did not say "check mechanisms" can not be written in an MoU. My point was
about the contract duration and its relation to the check mechanisms.
Checks, audits and adjustments can be made more effectively if the
agreement is renewable, as opposed to being in an indefinite contractual
relationship in my experience.

So I support a renewable contract where RIRs will have the possibility and
flexibility of renewing the same contract with the same operator, seek to
make changes to the contract if necessary, or even seek for an other
operator if something happens to the operator and they are not fit to
perform the function anymore.

These are the benefits I see having a contract with an end date while
keeping it renewable, as opposed to having an indefinite contract which
RIRs or the operator can find themselves stuck with its terms due to many
possibilities.

None of these are legal statements, just my opinions.

My use of a "timeless contract" was meant as a contract without an end date
so like an indefinite contract, if that is the cause of the confusion.

Kind regards

Filiz


On Tue, Jan 6, 2015 at 4:39 PM, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

> 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)
>>>>
>>>> _______________________________________________
>>>> ianaxfer mailing list
>>>> ianaxfer at nro.net
>>>> https://www.nro.net/mailman/listinfo/ianaxfer
>>>>
>>>
>>>
>>>
>>> --
>>> ------------------------------------------------------------------------
>>>
>>>
>>>
>>>
>>>
>>> *Seun Ojedeji,Federal University Oye-Ekitiweb:
>>> http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt
>>> email: <http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
>>> <seun.ojedeji at fuoye.edu.ng>*
>>>
>>> The key to understanding is humility - my view !
>>>
>>>
>>>
>>> _______________________________________________
>>> ianaxfer mailing list
>>> ianaxfer at nro.net
>>> https://www.nro.net/mailman/listinfo/ianaxfer
>>>
>>>
>>
>
>
> --
> ------------------------------------------------------------------------
>
>
>
>
>
> *Seun Ojedeji,Federal University Oye-Ekitiweb:
> http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt
> email: <http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
> <seun.ojedeji at fuoye.edu.ng>*
>
> The key to understanding is humility - my view !
>
>
>
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