[NRO-IANAXFER] Internet Number Community IANA Stewardship Proposal: Final Call for Comments

Pindar Wong pindar.wong at gmail.com
Fri Jan 9 16:31:01 CET 2015


On Fri, Jan 9, 2015 at 8:45 PM, Richard Hill <rhill at hill-a.ch> wrote:

>  Dear Pindar,
>
> 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.
>

I see.


>
> 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.


My experience is that drafting good contracts takes time... something that
this group has very little of!

So if the existing MoU is working well then there's probably no need to
reinvent the wheel and the MoU should be a good basis of the future
contract as you indicate above.

That would be a reasonable way forward ... as long as original assumptions
are checked against current realities and your earlier point w.r.t.
substantive law is addressed. The latter is perhaps best left to the
lawyers ;)

Cheers,

p.


> Best,
> Richard
>
> -----Original Message-----
> *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.
>>
>>
>
> That's great!
>
> 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.
>
> Gotta go.
>
> p.
>
>
>
>
>> /John
>>
>> John Curran
>> President and CEO
>> ARIN
>>
>>
>>
>>
>>
>
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