[NRO-IANAXFER] Should text of the contract be included? Proposal: Final Call for Comments

Pindar Wong pindar.wong at gmail.com
Mon Jan 12 08:51:04 CET 2015


On Sat, Jan 10, 2015 at 1:11 AM, Alan Barrett <apb at cequrux.com> wrote:

> On Fri, 09 Jan 2015, Richard Hill wrote:
>
>> The choice of dispute resolution mechanism and substantive law are not
>> "details", they are essential elements of a contract.
>>
>
> Yes, those are important elements of a contract.  The CRISP Team is not
> attempting to draft a contract; we are attempting to draft a proposal, and
> the proposal suggests a contract as one of the next steps.
>
>  I don't see how the community can endorse the proposal if it does not
>> know what those elements will be.
>>
>
> The CRISP Team is asking the community to endorse the idea of a contract,
> to be drafted later, and certain principles that should be included in the
> contract.
>
> I'd like to hear opinions from other community members on these
> questions:
>

At the risk of spilling rice on the keyboard ...


>
> 1. Should ICANN continue to provide the IANA services to the numbering
> community (the RIRs and their members)?
>

Yes.


>
> 2. If so, should there be a formal contract between ICANN and the RIRs?
>

I don't know.

There should be  written agreement(s), i.e. it should be documented and
public but it is unclear to me what's the 'best' way to express that
agreement (as it depends on how you define 'best').  Normally that would
evolve from an MoU to form of a legally binding contract and the current
draft, to my eye, uses 'agreement' and 'contract' somewhat interchangeably.
But we're dealing with the Internet that constantly evolves, so 'best' to
me are those mechanism and structures that retain some flexibility. If the
relationship breaks down then there may be greater fires to fight and
arbitration/lawyers may not help you (and might even make things worse). I
don't seeing anyone going after damages for breach of contract.

As you know the RIR's have been around longer than ICANN. FWIW it's my view
that the series of signed 'ASO MoU's have worked well (1999
<http://archive.icann.org/en/aso/aso-mou-26aug99.htm>, 2004
<http://archive.icann.org/en/aso/aso-mou-29oct04.htm>) thus far.

In the 1999 there was something to do with:-

'Nothing in this MOU is to be read as giving the ASO or the Address Council
any role in the contracts between individual RIRs and ICANN.'

So there was always room for formal contracts to emerge if needed. Maybe
now's the time. I don't see the dated ASO MoU as being terminally broken...
so what's going to happen to it? I presume it will be superceded by the
contract.

I'm a fan documents that are relatively simple, straightforward and the MoU
approach (as  was also used between the RIR's  with the NRO MoU
<https://www.nro.net/documents/nro-memorandum-of-understanding>. )

also recall

'Nothing in this MOU shall be construed to create between or among any of
the parties a partnership, joint venture, or impose any trust or
partnership or similar duty on any party, including as an agent, principal
or franchisee of any other party.'

This will/will not change under contract?   I haven't the foggiest idea.



> 3. If so, should the contract follow the principles outlines in section
> III.A.3 of the CRISP Team's proposal?
>

If a contract must be used then yes, the principles outlined should be
followed.


> 4. If so, should the contract be drafted in the remaining days before 15
> January 2015 (when the final proposal is due to be sent to the ICG), or can
> it be drafted later, some time between now and when the transition takes
> place?
>

No... insert sound of the bell (echo ^G)

I don't believe any contracting should be rushed and I don't believe that
should be attempted by 15 Jan.


> 5. If the contract can be drafted later, does the community want the RIR
> Boards or executive officers to consult the community before finalising the
> contract?
>

They should consult their respective communities who may have delegated as
they see fit.

Thanks Alan.

p.


>
> -- Alan Barrett, member of the CRISP Team
>
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