Process concern regarding the RIR proposal development process

["Richard Hill" <rhill@xxxxxxxxx>]

I refer to the IANA Stewardship Transition Proposal Assembly and
Finalization Process, published at:

  https://www.icann.org/en/system/files/files/iana-transition-assembly-final
ization-24dec14-en.pdf

I.1 states that ICG will review "Any process concerns that were highlighted
to the ICG by participants in the proposal development process".

Consequently, please review the following concerns that I am highlighting
regarding the RIR proposal development process for the numbers part of the
IANA transition.

Certain legal questions were raised in discussions on the CRISP mailing list
(NRO IANAXFER), in particular regarding jurisdiction and dispute resolution.
The CRISP team apparently did not include anybody who had appropriate legal
expertise and it chose not to request outside legal expertise, see:

  https://www.nro.net/pipermail/ianaxfer/2015-January/000322.html

As a result, the proposal[1] submitted by CRISP to the ICG lacks sufficient
detail with respect to those issues. That is, the proposal is indeterminate
in some respects, in the sense that saying "Disputes between the parties
related to the SLA will be resolved through arbitration"(which is what the
proposal says) is akin to saying "there will be a contract".  The words
"there will be a contract" do not provide sufficient detail to determine
whether the contract in question would fulfill its objectives.  Similarly,
the words "resolved through arbitration" do not provide sufficient detail to
determine whether the arbitration in question would fulfill its objectives.

Similarly, the proposal says "The agreement would also provide for
jurisdiction and governing law regarding the new arrangement." This does not
provide sufficient detail to determine whether the jurisdiction and
governing law in question would fulfill their objectives.

Recognizing that the lack of detail mentioned above is an issue, the
proposal states "It is expected that the RIRs, as the contractual party of
this agreement, will draft the specific language of this agreement. During
the drafting process, the RIRs are expected to consult their respective RIR
communities, and that the drafting process will be guided by the principles
listed below. References to relevant sections of the current NTIA agreement
are also noted, as it is expected the new agreement will share many of the
same contractual goals and mechanisms."

This formulation also raises a process concern, because the final transition
plan is supposed to reflect the consensus of the global multi-stakeholder
community, not the consensus of the RIRs or the RIR communities.  If the
intent is to consult the global multi-stakeholder community with respect to
the specific language of the agreement, then why not do that now, so that a
complete proposal can be presented by the ICG to NTIA?

That is, how can NTIA be expected to approve a proposal when important
details are left open and have not been reviewed or endorsed by the global
multi-stakeholder community?

And this in particlar given that, within the process, those who judged
consensus were all members of the RIR community, see:

  http://lists.arin.net/pipermail/iana-transition/2014-October/000035.html

Regarding the process used by the RIRs, I note that it was very transparent
and invited (indeed encouraged) inputs from all parties. However, in
practice there was limited input and the outcome was largely influenced by
the CRISP team and the RIR staff, see:

  https://www.nro.net/pipermail/ianaxfer/2015-January/000247.html

  https://www.nro.net/wp-content/uploads/NRO-to-ICANN-Accountability-2014066
.pdf

  http://mailman.apnic.net/mailing-lists/ianaxfer/archive/2014/10/msg00050.h
tml

  http://www.slideshare.net/fullscreen/apnic/report-ianatransition/1

There was very limited discussion on the lists of the option for the NRO
itself to provide the numbers part of the IANA function. That lack of
discussion has been construed as lack of support, which may well be the
case. But it might also reflect a reluctance to voice support for an option
which was not consistent with the early views put forward by the RIR
leadership.

Sincerly,
Richard

[1] http://www.nro.net/crisp-final-proposal