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

Izumi Okutani izumi at nic.ad.jp
Mon Jan 12 10:44:27 CET 2015


Noted Seun and Pindar. Will bring this up within the CRISP Team.
Thank you for clarifying this,

Best Regards,
Izumi Okutani
The CRISP Team

On 2015/01/12 18:39, Seun Ojedeji wrote:
> 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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