[NRO-IANAXFER] Internet Number Community IANA Stewardship Proposal: Final Call for Comments
rhill at hill-a.ch
Fri Jan 9 13:45:37 CET 2015
While I'm not a lawyer, I do know a bit about arbitration, dispute resolution, and contract law.
>From my point of view, the main purpose of a written contract is to avoid disputes arising: if a contract is clear and comprehensive, the parties know what they are supposed to do.
The main purpose of a dispute resolution clause is to allow for fast and effective resolution of whatever disputes might arise.
Since there have been no disputes to date, that is a good indication that the existing MoU is clear and comprehensive and forms a good basis for the future contract.
Arbitration is a commonly used dispute resolution process for international contracts. It is an effective method, but it can be expensive (in particular, ICC arbitrations tend to be expensive). But that can be helpful, because it encourages the parties to find a negotiated solution so as to avoid the cost and complication of the formal arbitration process.
So, I think that an ICC arbitration clause in one of the commonly used neutral jurisdictions (Geneva, Paris, London, Vienna, Stockholm, Bermuda) is appropriate. Note that the choice of the jurisdiction of the arbitration does not determine the substative law that applies to the contract.
From: ianaxfer-bounces at nro.net [mailto:ianaxfer-bounces at nro.net]On Behalf Of Pindar Wong
Sent: vendredi, 9. janvier 2015 03:22
To: John Curran
Cc: ianaxfer at nro.net
Subject: Re: [NRO-IANAXFER] Internet Number Community IANA Stewardship Proposal: Final Call for Comments
On Fri, Jan 9, 2015 at 9:59 AM, John Curran <jcurran at arin.net> wrote:
On Jan 8, 2015, at 4:35 PM, Pindar Wong <pindar.wong at gmail.com> wrote:
> It might be worthwhile considering whether in II.A.3, last para, to provide a data point that over M years there have been N disputes.
I have no view with respect to the worthiness of including such a data point,
but the answer would vary based on whether the term “dispute” includes the
normal interchange of views and clarifications as provided for in the Global
Policy Development Process, or whether it refers to the situation where the
outcome of gPDP process is not satisfactory to the RIRs or ICANN and the
formal dispute resolution process contained in the MOU gets invoked.
Sorry... again, I should have been more clear. It's difficult to keep up... rushed mornings for volunteer work doesn't help ;)
I'm referring to the latter i.e. how many times since 2004 have the RIRs and ICANN needed to go to Arbitration. Methinks zero.
To me that reflects that the existing mediation mechanisms are working well. What prompted this thought was the line 'It is also worth noting that' w.r.t. the participation in the ATRT bit.
Over the years, there have been a small number requests from ICANN for
clarification prior to global number resource policy ratification; I would estimate
this to be 3 to 5 cases (it would require some research to establish the precise
number), and in all cases supplying the requested information resulted in prompt
policy ratification. There have been no policy “disputes”, i.e. situations which
necessitated invocation of the dispute resolution process.
There maybe a downside though to the above, perhaps something to be considered as the details of SLA's are being drafted --- how do you know when mediation fails that your arbitration processes (as envisaged) work, under current assumptions, if they've never been tested? Sorry, I've no idea on that one... other than perhaps asking others with related experience how different arbitration centres worked for them.
Thanks for the comments on the proposal!
One tries... it should be noted that my views are mainly historic... probably out-of-date and time ;)
Thanks for your patience. I'll try writing longer emails but typing is tough for me these days.
President and CEO
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