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

Seun Ojedeji seun.ojedeji at gmail.com
Mon Jan 12 10:39:02 CET 2015


I think Pindar is reflecting what I had mentioned at the early stage of
this process about contract vis agreement and also the possibility of
reviewing the existing MOU to be sufficient. However, I resolve to the
Wikipedia definition of contract which simply imply they mean the same
thing.

Nevertheless, if CRISP is willing to reconsider based on Pindar's comment I
just like to mention that I am in support of his/her view.

Thanks
sent from Google nexus 4
kindly excuse brevity and typos.
On 12 Jan 2015 08:52, "Pindar Wong" <pindar.wong at gmail.com> wrote:

>
>
> 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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>
>
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