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

Richard Hill rhill at hill-a.ch
Fri Jan 9 19:26:07 CET 2015


Dear John,

Thank you for this detailed response.  The detail of the arbitration clause
is only one of the missing details.

As I said before, I know a bit about arbitration, so, in my view, saying "we
will use arbitration" is not sufficient. There are many forms of
arbitration, some of which are not suitable.  I did indicate suitable
choices: ICC arbitration in Geneva, Paris, London, Vienna, Stockholm, or
Bermuda.

You imply below that the contract will be negotiated between ICANN and the
RIRs.  That was not my understanding. I was under the impression that the
RIRs would present a draft contract, endorsed by the community, and that the
ICANN Board would accept that contract unless it had some really
objectionable features.

So, again, it seems to me that the proposal should include a draft contract,
and that the current proposal should include a bit more detail on the
arbitration clause, and also a choice of law clause.

Best,
Richard

> -----Original Message-----
> From: John Curran [mailto:jcurran at arin.net]
> Sent: vendredi, 9. janvier 2015 18:42
> To: rhill at hill-a.ch
> Cc: ianaxfer at nro.net
> Subject: Re: [NRO-IANAXFER] Internet Number Community IANA
> StewardshipProposal: Final Call for Comments
>
>
> 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.
>
> Thanks,
> /John
>
> John Curran
> President and CEO
> ARIN
>
>
>
>




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