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

Hans Petter Holen hph at oslo.net
Fri Jan 9 21:17:59 CET 2015


Thanks for the detailed reasoning on this. 
I support this and belive it is aligned with the level of detail we have discussed at the last RIPE meeting. 

(we did not go to such detail, and I would take this as implicit support for leaving this to the RIPE NCC staff to sort out under final supervision of the board an in consultation with the community to the extent necessary)

If there are specific places and jurisdiction to be avoided or prefered I am sure specific advice with justification is highly welcome for the later stages. 

-hph

On 9 January 2015 18:42:08 CET, John Curran <jcurran at arin.net> wrote:
>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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