[NRO-IANAXFER] Contract details

Richard Hill rhill at hill-a.ch
Thu Jan 8 11:21:40 CET 2015


There are two separate issues here: (1) what substantive law applies to the contract and (2) how disputes would be resolved.  The current MoU addresses (2): arbitration in Bermuda.  It does not address (1): if there were a dispute, the arbitration panel would have to decide what law to apply.

Regarding (1), the bit "or other such location as agreed between the NRO and ICANN" is not actually necessary, because the parties to an arbitration can always voluntarily agree to change the seat of arbitration.

Regarding (2), a choice of substantive law is usually found in contracts, because otherwise significant legal fees will be incurred, if a case goes to arbitration, just to argue which law should apply.

So I would strongly recomment that the future contract include an explicit choice of law clause.

Regarding the UDRP providers and arbitrators, I don't think that they are directly relevant in this context: they were chosen for experise regarding trademark and domain name disputes, not general expertise regarding commercial disputes.  However, some of the providers do provide general dispute resolution services, and some of the UDRP arbitrators are also active as general commercial arbitrators.  The question here is whether the new contract should refer to some specific list of arbitrators, rather than just referring to a provider such as ICC, which has its own list.

Best,
Richard
  -----Original Message-----
  From: ianaxfer-bounces at nro.net [mailto:ianaxfer-bounces at nro.net]On Behalf Of Pindar Wong
  Sent: jeudi, 8. janvier 2015 07:52
  To: John Curran
  Cc: ianaxfer at nro.net
  Subject: Re: [NRO-IANAXFER] Contract details






  On Thu, Jan 8, 2015 at 1:52 PM, John Curran <jcurran at arin.net> wrote:

    On Jan 7, 2015, at 3:03 PM, Pindar Wong <pindar.wong at gmail.com> wrote:



      Not a lawyer, but FWIW  keep in view this structure for ICANN's existing list of arbitrators:- 

      https://www.icann.org/resources/pages/providers-6d-2012-02-25-en


    Pindar - 

      You are going to have to be more specific with respect to “keep in view 
      this structure for ICANN’s existing list of arbitrators"


      Are you indicating that you feel that a contract from address community
      for IANA operator services for the central number registries (i.e. RFC 7249)
      should somehow consider ICANN’s list of Uniform Domain Name Dispute
      resolution providers?  If so, could you explain why you believe the list is 
      relevant to the CRISP team efforts, and how it should impact the effort?


     Without such explanation, it is quite unclear how the CRISP team should
     consider your input...


  Sorry John for the confusion... you were recounting what you remembered w.r.t. the selection criteria of Bermuda for arbitration. 

  It's been a while but from what I recall there was also the 'other option' in the Arbitration bit that the CRISP team might need to consider.


  Emphasis mine:-
  http://archive.icann.org/en/aso/aso-mou-29oct04.htm

    In the event that the NRO is in dispute with ICANN relating to activities described in this MoU, the NRO shall arrange arbitration via ICC rules in the jurisdiction of Bermuda or such other location as is agreed between the NRO and ICANN. The location of the arbitration shall not decide the laws to be applied in evaluating this agreement or such dispute.




    https://aso.icann.org/documents/memorandums-of-understanding/nro-memorandum-of-understanding/ 


    arrange arbitration via ICC rules in the jurisdiction of Bermuda, or such other location as is unanimously agreed upon by each of the parties to the arbitration.


  The point that I was trying to make to the CRISP team, when it considers the seat of jurisdiction issue, keep in view, if it wishes to retain a  'such other location as agreed', that it might be helpful to figure out beforehand how it might come to the agreement of this non-Bermuda jurisdiction.  If so, then it might be helpful to consider the ICANN UDRP dispute resolution providers as a starting point.  This list of arbitrators were selected again some criteria, which may not be relevant for your purposes, but it's just a starting point.


  Hope that helps.

  p.






   



    Thanks!
    /John


    John Curran
    President and CEO
    ARIN







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