[NRO-IANAXFER] What would be helpful when sharing your input

Richard Hill rhill at hill-a.ch
Sat Jan 10 23:34:04 CET 2015


Dear Izumi,

Thank you very much for this thoughtful reply, and please see embedded
comments below.

Best,
Richard

> -----Original Message-----
> From: ianaxfer-bounces at nro.net [mailto:ianaxfer-bounces at nro.net]On
> Behalf Of Izumi Okutani
> Sent: samedi, 10. janvier 2015 21:53
> To: ianaxfer at nro.net
> Subject: Re: [NRO-IANAXFER] What would be helpful when sharing your
> input
>
>
> Dear Richard and all colleagues,
>
SNIP

> -----
> 1) Add more details of dispute resolution (III A.3.x.)
>
> Some comments expressed support that arbitration is an important area to
> get it right. Description is there in the second draft as ""Disputes
> between the parties related to the SLA will be resolved through
> arbitration."
>
> However, there is disagreement about the level of details required.
>
> Perhaps, Richard's concern is that if we are not specific enough, we may
> have the dispute resolution and arbitration process which is not
> appropriate for the RIRs (and the IANA operator). I agree it is
> important to ensure this not to happen.
>
> At the same time, it seems to me that it is common consideration for the
> mechanims and place of dispute resolution and abitrabtion to be  neutral
> to all parties, applicable in all appropriate jurisdictions and
> pragmatic to be able to use the process. I'm sure RIR legal team will
> take this point into consideration without having to explicitly say so
> (as several other people have expressed).

Yes, I'm sure that the RIR legal team will do that, and I understand that
people on this list are not comfortable specifying details of an arbitration
clause, but I still don't understand why the document that goes to the ICG
should not specify the same arbitration clause that is in the present MoU,
namely "ICC arbitration in Bermuda".

Alternatively, as a compromise, I could accept "ICC arbitration in a neutral
venue".

There is another point that I've raised which has not been much discussed to
date: specification of the substantive law that will apply to the new
contract/SLA. I would suggest Swiss law, but I can understand that others
might have other preferences.  Again, the RIR legal team can surely work
this out, but I still think that (1) the community should give them some
guidance and (2) the community should have the opportunity to comment on
whatever the RIR legal team comes up with.

Regarding guidance, I would suggest that the proposal include something to
the effect that the contract will include a clause specifying that the
substantive law that applies to the contract will be that of a neutral
jurisdiction.

>
> -----
> 5) Community cannot approve this part of the transition plan without an
>    SLA text
>
> Richard is not comfortable unless draft of SLA text will be annexed as
> reference in the proposal to be submitted to the ICG, for RIRs'
> consideration as the devil is in the details.

My preference is that the draft text be contained in the proposal submitted
to the ICG.  As an alternative, I could accept some mechanism whereby the
community, including this list, is asked to comment, at a later stage, on
the text of the contract/SLA.

>
> Several comments expressed that the community is comfortable with
> leaving the details to RIRs staff, as long as the principles to be
> included in the SLA are described. An observation was made that the
> number resources communities are not lawyers and better to leave this
> part to legal experts.

In my experience, it is usual for the business experts to outline the main
elements of a contract, for the lawyers to draft the details of the
contract, and for the business experts to review what the lawyers have
drafted.

So I don't understand why the third step should be omitted in this case.

>
> It seems to me that both Richard and people who claim to delegate the
> details to the executives of the RIRs and its legal team share the same
> motivation: to get the right contract which appropriately serves the
> number resources community.
>
> When thinking about what would be the best way which helps us develop
> the contract which effectively serves this purpose, it seems that it is
> the best to leave it to experts, i.e., RIR legal team, who will be
> explicitly gather for this purpose of developing the SLA (the CRISP Team
> has members with legal expertise but the Team as a whole is not a group
> of legal experts who are called for this purpose). This allows the
> contract to be considerd from several options of implementations per
> principle raised and describe what best suits the purpose.
>
> I agree with Richard on the point that it is common practice for
> business people takes a look at the contract developed by a legal
> expert. In this case, RIR executives and Board will serve this role, as
> John Curran has described. RIRs should know what serves them best in
> what they need as the direct stakholers in this function.
>
> Would this summary address your concern Richard?

No, I think that the global multistakeholder community (to which NTIA wishes
to transition the current role played by the NTIA) should have the
opportunity to comment on and endorse the contract.

NTIA commented on and endorsed the current IANA functions contract, so the
global multistakeholder community should have the same opportunity.

>
> If it doesn't, it would be helpful if you could describe what would the
> concern you have with this approach, in developing the contract which
> best suits the needs for the number resources function.

I have no doubt that the RIR legal team will develop an appropriate
contract, but I have trouble understanding why that contract should not be
submitted for review and endorsement to the community as a whole.


> -----
>
> Best Regards,
> Izumi Okutani
>
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