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

Richard Hill rhill at hill-a.ch
Fri Jan 9 17:23:00 CET 2015


Dear Izumi,

Thank you very much for this.

Please seem my embedded replies below.

Thanks and best,
Richard

> -----Original Message-----
> From: Izumi Okutani [mailto:izumi at nic.ad.jp]
> Sent: vendredi, 9. janvier 2015 17:09
> To: rhill at hill-a.ch; ianaxfer at nro.net
> Subject: Re: [NRO-IANAXFER] Internet Number Community IANA
> Stewardship Proposal: Final Call for Comments
>
>
> Dear Richard,
>
>
> Let me share what we discussed at the 10th CRISP Team call today.
>
>
> > The new version appears to me to reflect correctly the
> discussions on this
> > list, except that (a) in III.A.3.x, a specific arbitration scheme
> (e.g. ICC
> > in Bermuda) should be mentioned; and (b) the substantive law
> applicable to
> > the contract/SLA should be specified (as stated at the end of IV.B);
> this is
> > particularly important because, as I understand it, the contract will be
> > between ICANN and the five RIRs, so it might be tricky to determine the
> > applicable substantive law if a dispute actually arises.
>
> As described in our proposal document, we are listing high level
> principles in our proposal and the details of the implemetantion is for
> the RIR staff to make the decision.
>
> Incorporating your suggestion would be adding more details about
> arbitration than other items, where we weren't able to identify
> additional needs more than other items.

The choice of dispute resolution mechanism and substantive law are not
"details", they are essential elements of a contract.  I don't see how the
community can endorse the proposal if it does not know what those elements
will be.

>
> It's important we highlight and explain items and conditions which needs
> to give specific guidance, but how to handle arbitration is not an usual
> item and RIR legal team would have more expertise to consider what would
> be the best arrangement.

I agree with that.  But I think that the CRISP team can ask the RIR legal
team to fill in those elements and then come back to this list with a
revised version of the proposal that includes those elements.

SNIP

>
> > More importantly, I don't think that this version is sufficient to
> > constitute a proper response to the IGC RFP, because it does not
> provide the
> > actual text of the new contract/SLA.  I don't see how the
> community could
> > approve this part of the transition plan without seeing the actual
> proposed
> > contract. That proposed contract could be provided as an Annex to the
> > present document.
>
> There was disagreement that we do not meet the requirement of ICG RFP
> unless we define an SLA.
>
> The draft decribes items and principles to be incorporated in SLA, which
> should give sufficient idea about the key points which will be
> considered in developing SLA.

As we all know, the devil is in the detail.  I don't see how the community
can endorse the proposal if it does not contain all the details.

>
> The ICG RFP does say "in as much detail as possible" (under "Required
> Proposal Elements") and "If your community is proposing to replace one
> or more existing arrangements with new arrangements, that replacement
> should be explained and all of the elements listed in Section II.B
> should be described for the new arrangements."  (section III. "Proposed
> Post-Transition Oversight and Accountability Arrangements").  Saying
> there will be a contract including an SLA satisfies the requirement, and
> listing principles for the Contract/SLA adds more than enough detail.

I disagree.  The words "in as much detail as possible" clearly mean that all
relevant details should be provided.  And the words "all of the elements ...
should be described for the new arrangements" means just that: all of the
elements, not an outline of the elements.

>
> Another point I'd like to share, which is considered important among
> CRISP Team members is, this will be stepping into someone's
> responsibility (in this case, RIRs) where the CRISP Team is not mandated
> to do.
>
> It is the contract to be exchanged between RIRs and IANA operator.
> CRISP Team may list items considered to be impportant  but developing
> the actual SLA is the role of RIRs legal team.

Yes, I agree that the RIR lawyers should develop the contract.

But I think that it is the role of CRISP to request that they do that, and
to annex the result to the proposal that will be transmitted to the ICG.

As I said before, I consider that the the proposal will not be complete
unless it includes a draft contract.

>
> I see all our conclusions are not agreeing to incorporate your commetns
> but I hope this sufficient explaination about its reasons.
>
> Thank you again for taking your time to send us the comments.
>
>
> Regards,
> Izumi Okutani
> CRISP Team
>
>




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