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

Richard Hill rhill at hill-a.ch
Fri Jan 9 21:58:51 CET 2015



> -----Original Message-----
> From: John Curran [mailto:jcurran at arin.net]
> Sent: vendredi, 9. janvier 2015 21:23
> 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 12:01 PM, Richard Hill <rhill at hill-a.ch> wrote:
> > ...
> > I am saying (1) that the community should review and take a
> position on all
> > of the language of the new contract and (2) that the details of the
> > arbitration clause and the choice of law clause are
> sufficiently significant
> > that they should be included in the current document.
> >
> > This is necessary because those elements are signficant, just as are the
> > elements that are currently in the document.
>
> How are they significant?  You have still failed to explain why the
> community needs to establish a position more detailed than 'dispute
> resolution via arbitration'

Because, as I understand things, a clause that says "dispute resolution via
arbitration" has no more meaning than a clause that says "we will have a
contract".  That is, the statement "we will have arbitration" is missing the
essential elements that determine the actual arbitration, such as the seat
of the arbitration and the rules for the arbitration.

In other words, the clause as currently written is indeterminate.

>
> > I think that what you are saying is that you don't see why they are as
> > significant as the other elements, so I guess we will have to agree to
> > disagree: we have different backgrounds and experience so we
> may not have
> > the same view of what is or is not significant.
>
> You completely misunderstand then, as I have no view on whether they are
> significant or not, nor any position on whether the community should take
> a position more detailed than the one in the present draft.
>
> My only position is that you have failed to explain to the community why
> _it_ must take a more detailed position in the arbitration matter, i.e.
> why it is of such significance that it can not be left to RIRs legal team.

It can be left to the legal team, but I think that (a) their work would be
easier if we gave them some guidance (e.g. keep the existing clause, which
is arbitration in Bermuda) and (b) I think that the community should review
and endorse the work of the legal team.

>
> > Not necessarily the details of their legal work, but the actual contract
> > language.  In my experience, the business people (in this case the
> > community) do read the contract after it is drafted by the
> laywers.  After
> > all, it is often signed by the business people, not by the lawyers.
>
> That's correct, but in this case that would be the actual
> Regional Internet
> Registry and their governing bodies as elected by the community, i.e. the
> actual business entities entering into agreement.

Well, the question is what the community wishes to delegate to those
governing bodies.  It could have delegated the entire proposal to them.  In
my view, the actual contract should be reviewed and endorsed by the
community, not just by the governing bodies.

>
> > As I said before, I don't expect the CRISP team to do it.  But
> I would have
> > expected them to ask the lawyers to do it, and then to come
> back and present
> > the draft to this group for its evaluation and endorsement.
>
> You mistake the CRISP team for the contractual parties.

No, I do understand who are the contractual parties.  That's not the
question.  The question is how much say the community should have over the
actual contract, as opposed to the principles of the contract.

>
> FYI,
> /John
>
> John Curran
> President and CEO
> ARIN
>
>
>




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