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

John Curran jcurran at arin.net
Fri Jan 9 18:42:08 CET 2015

On Jan 9, 2015, at 8:23 AM, Richard Hill <rhill at hill-a.ch> wrote:
> ...
> 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.

If I understand the second CRISP team draft correctly, dispute resolution 
is specified -

"Disputes between the parties related to the SLA will be resolved through arbitration."

It appears that you seek more specificity in this area, but I am unsure how 
that it possible since the agreement will be between the RIRs and ICANN and 
hence subject to negotiation and uncertain outcome. As it reads now, if the 
outcome of that negotiation results in dispute resolution "through arbitration" 
(as required per this proposal), then we will have success.  

It appears extremely ill-advised to get more specific, unless the community is 
of the belief that a certain dispute resolution venue and mechanism (beyond simply 
"arbitration") is somehow fundamental to achieving consensus on the IANA transition
proposal being submitted by this community.

For example, if the language in the existing ASO MOU were to become part of this 
proposal - 

"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."

...then any resulting agreement with the ICANN for IANA operation services would 
have to provide for "arbitration via ICC rules in the jurisdiction of Bermuda".  
If such an outcome could not be obtained, then we would have to declare failure.
Such a result is certainly an option if the community decides that this particular
detail is fundamental to success, but from the discussion that has occurred on this 
and the regional lists, I have seen no support for that position aside from your own 
(and have seen actually no recommendation from you on the specific dispute resolution 
mechanism that you feel is so essential for a successful IANA stewardship transition.)

> ... 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.

Seeking a recommendation for those elements is indeed an option, but should
only occur if the community actually requires that level of specificity in 
order to know that the IANA stewardship transition proposal meets their 
needs, as its inclusion otherwise creates significant risk to success (as
noted above.)

> 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.

>From what I can tell, the community seems quite content with the dispute 
resolution process to be "arbitration" (and then having their community-based 
RIR organizations work on the specific mechanisms at the appropriate time.)

> ...  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.

Here I agree with you, at least in concept... to the extent that the community 
feels that the specific arbitration venue and mechanism is essential detail,
it must be included.  If it is not an essential detail, it should be omitted
as its inclusion is both unnecessary and creates unnecessary risk.

As far as I can tell, _no one_ has asserted that a specific specific arbitration 
venue and mechanism is necessary for a successful IANA stewardship transition 
proposal.  (Note I do read quite a bit of email, so if I have somehow missed 
someone making that assertion on these lists, please direct me accordingly...)

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

Your belief would be misplaced, as applicable ICG RFP paragraph is as follows -

"This section should describe what changes your community is proposing to the arrangements listed in Section II.B in light of the transition. 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. Your community should provide its rationale and justification for the new arrangements."

The second CRISP team draft:

  - Describes all of the changes being proposed
  - Includes all the elements listed in Section II.B
  - Includes the rationale for the new arrangements

You reference the need for "as much detail as possible", but failed to 
actually include the full RFP statement - "Communities are requested to 
describe the elements delineated in the sections below in as much detail 
possible"   This clearly encourages detail, but leaves the determination
of what is possible to the respondent (by the phrasing as a request.)

I have no objection to inclusion of a specific arbitration venue and 
mechanism to be used for dispute resolution, but that should not occur 
unless/until the community expresses a clear preference for inclusion
with a clear justification for why its inclusion is an essential element 
of the IANA stewardship transition plan.  Its inclusion otherwise serves 
no clear purpose, unless one considers increasing risk of failure to be
a desirable goal.


John Curran
President and CEO

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