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

Izumi Okutani izumi at nic.ad.jp
Mon Jan 12 18:40:41 CET 2015


Dear Colleagues,



Based on discussions at the 11th CRISP Team Teleconference which was
held at 13:00UTC 12th Jan, the CRISP Team's position on the pending
issues raised by Richard Hill is as below:

> Dispute resolution
>   - Including the clause "ICC arbitration in a neutral venue".
>   - state in the proposal the contract will include a clause specifying
>     that the substantive law that applies to the contract will be that
>     of a neutral jurisdiction.


The CRISP Team is not a group of legal experts. We do not feel it is
appropriate for the CRISP Team to define a specific condition of the
arbitration at this stage, restricting consideration for the RIR legal
team. We see several other members of the community has expressed
opinion along this line.

It may be the case as Richard has mentioned, that the RIR legal team
makes the decision to describe just as the same as in the existing
MoUbut it is premature for the CRISP Team to specify and narrow to this
option, before full considerations have been made by legal experts
(which we are not).

Our current position therefore is to make no changes in the current
wording of the second draft proposal.

We think it serves the best interests to leave this consideration to RIR
legal team to see what the best option for arbitration is for all
parties involved.

Having said that, as I will explain in the next paragraph, we will
describe in our proposal about community consultation before fixing the
SLA (this may not be the exact wording but this is the basic idea).

> SLA
>   - Take the following steps:
> (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 including those on this list.


The CRISP Team is currently considering to describe in our proposal
about consultation to the relevant community before fixing the SLA.

I hope this provides sufficient rationale and clarifications about the
CRISP Team's position at this stage.


Best Regards,
Izumi Okutani
The CRISP Team

On 2015/01/12 18:31, Izumi Okutani wrote:
> Dear Richard,
> 
> 
> Thank you for explaining the area of your concern, its reasonsn and
> clarifying where you are able to accept as an alternative.
> I'
> I note that you still have comments on two points below, and are able to
> accept the alternative sugestion you have decribed as below:
> 
> 
> Dispute resolution
>   - Including the clause "ICC arbitration in a neutral venue".
>   - state in the proposal the contract will include a clause specifying
>     that the substantive law that applies to the contract will be that
>     of a neutral jurisdiction.
> 
> SLA
>   - Take the following steps:
> (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 inlcuding those on this list.
> 
> 
> This is helpful to know.
> 
> Your points are under discussions within the CRISP Team, including all
> the points you listed, not just the acceptable alternatives you suggested.
> 
> 
> 
> 
> Best Regards,
> Izumi Okutani
> The CRISP Team
> 
> On 2015/01/11 7:34, Richard Hill wrote:
>> 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
>>>
>>> _______________________________________________
>>> ianaxfer mailing list
>>> ianaxfer at nro.net
>>> https://www.nro.net/mailman/listinfo/ianaxfer
>>>
>>
> 
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