[CWG-Stewardship] Concern with Contract Co.

Mon Dec 1 20:08:35 UTC 2014

Hi Greg,

This is not entirely my point. My point is whatever is required as service
level can be defined in this process and then we think of how to make that
binding either through MOU (which does not call for an RFP) or through SLA,
without creating a new contracting entity.

Regards

sent from Google nexus 4
kindly excuse brevity and typos.
On 1 Dec 2014 20:43, "Greg Shatan" <gregshatanipc at gmail.com> wrote:

> That is essentially what is happening in the current proposal.  The
> community (via the PRT) will define the SLA that will be part of the post
> transition IANA Contract, and that Contract will set forth what happens if
> the SLA is not met.
>
> I'm not sure why we would want two contracts (an SLA and an MoU) when one
> (an agreement incorporating service level obligations plus other necessary
> matters) will do.
>
> Greg
>
> On Mon, Dec 1, 2014 at 1:48 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> sent from Google nexus 4
>> kindly excuse brevity and typos.
>> On 1 Dec 2014 19:34, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>> >
>> > Olivier:
>> >
>> > An MoU is a contract, which does need legal entities to enter into it.
>> An SLA is an agreement, which does need legal entities to enter into it.
>> >
>> I think the main point is that SLA can generally be referenced by an MOU
>> and yes both need some legal entities to activate it.
>>
>> So the community define it's SLA and then an MOU refers it with other
>> details of what happens if the SLA is not meet.
>>
>> Cheers!
>>
>> > C'est la vie.
>> >
>> > Greg
>> >
>> > On Mon, Dec 1, 2014 at 11:22 AM, Olivier MJ Crepin-Leblond <ocl at gih.com>
>> wrote:
>> >>
>> >> Dear Greg,
>> >>
>> >> for the record, my understanding was like Alan's.
>> >> There was specific mention of a "Committee". The "Service Level
>> Agreement" could be part of a MoU which does not need legal entities like a
>> formal contract.
>> >>
>> >> Kind regards,
>> >>
>> >> Olivier
>> >>
>> >>
>> >> On 01/12/2014 07:35, Greg Shatan wrote:
>> >>>
>> >>> Alan:
>> >>>
>> >>> Strawman 1 was not an "internal to ICANN" proposal.  The part that
>> you quote refers to the IANA Functions Operator remaining ICANN.  That does
>> not make it an internal to ICANN approach.  The current proposal also
>> leaves ICANN as the IANA Functions Operator.  By that measure, the current
>> proposal is just as much "internal to ICANN."
>> >>>
>> >>> An "internal to ICANN" approach would be one where there was no
>> external entity (legal or otherwise involved) and oversight, accountability
>> and all of the other roles currently performed by NTIA are performed by
>> bodies internal to ICANN.
>> >>>
>> >>> You go on to say that there was "clearly no other entity holding the
>> contract."  This is incorrect.  I draw your attention to the section
>> "Documentation to Replace NTIA Contract," which reads:
>> >>>
>> >>> Service Level Agreement.  The OPRC and ICANN will enter into a
>> Service Level Agreement for the performance of the technical and
>> administrative IANA functions.  The SLA would run for an initial term of
>> three years and would be renewed upon the agreement of the OPRC and the
>> IANA Functions Operator.
>> >>>
>> >>> A "Service Level Agreement" is a form of contract -- so there is
>> clearly a contract.  And it states that the "OPRC and ICANN will enter
>> into" this contact.  So there is clearly an "other entity" holding the
>> contract.
>> >>>
>> >>> You also state that the OPRC is an "internal committee." This is also
>> incorrect.  The section on legal status of OPRC states "Legal Status.  The
>> OPRC will be a committee rather than a separate incorporated entity.  [The
>> committee may be considered an “unincorporated association,” and will be
>> domiciled in [California or the U.S. or Switzerland or some other place] to
>> the extent that the committee has a legal identity.]."  Nowhere does this
>> state or even imply that the OPRC is an ICANN Committee.  Indeed the fact
>> that there is a discussion of domicile and that OPRC will enter into an
>> agreement with ICANN can only lead to the conclusion that the OPRC is
>> external ICANN.
>> >>>
>> >>> I stand by my earlier statement -- I don't think an "internal to
>> ICANN" proposal was ever put on the table within the group prior to
>> Frankfurt in any kind of tangible, concrete fashion.
>> >>>
>> >>> Greg
>> >>>
>> >>>
>> >>>
>> >>>
>> >>>
>> >>> On Sun, Nov 30, 2014 at 11:42 PM, Alan Greenberg <
>> alan.greenberg at mcgill.ca> wrote:
>> >>>>
>> >>>> I have to disagree.
>> >>>>
>> >>>>> Strawman Proposal 1
>> >>>>>
>> >>>>> 4 Status of IANA Functions Operator
>> >>>>>
>> >>>>> a Division of ICANN.  The IANA Functions Operator will remain a
>> division of ICANN.
>> >>>>>
>> >>>>> b Enhanced Separability.  ICANN will maintain the current
>> separation between ICANN and IANA, and will make the IANA Functions
>> Operator more easily separable from ICANN, if separation becomes necessary
>> at some future time.
>> >>>>
>> >>>>
>> >>>> There was a "Review Committee" but clearly no other entity holding
>> the contract. Strawman 1 did, nonsensically, posit that the internal
>> committee could initiate an RFP. for a "new" operator, but this too
>> confirmed the the "old" operator was ICANN.
>> >>>>
>> >>>> The references to an oversight "mechanism" also alluded to something
>> other than an external contract-holding entity.
>> >>>>
>> >>>> Alan
>> >>>>
>> >>>> At 30/11/2014 01:50 PM, Greg Shatan wrote:
>> >>>>>
>> >>>>> Frankly, I don't think an "internal to ICANN" proposal was ever put
>> on the table within the group prior to Frankfurt in any kind of tangible,
>> concrete fashion.
>> >>>
>> >>>
>> >>>
>> >>>
>> >>> --
>> >>>
>> >>> Gregory S. Shatan ï Abelman Frayne & Schwab
>> >>>
>> >>> 666 Third Avenue ï New York, NY 10017-5621
>> >>>
>> >>> Direct  212-885-9253 | Main 212-949-9022
>> >>>
>> >>> Fax  212-949-9190 | Cell 917-816-6428
>> >>>
>> >>> gsshatan at lawabel.com
>> >>>
>> >>> ICANN-related: gregshatanipc at gmail.com
>> >>>
>> >>> www.lawabel.com
>> >>
>> >>
>> >> --
>> >> Olivier MJ Crépin-Leblond, PhD
>> >> http://www.gih.com/ocl.html
>> >
>> >
>> >
>> >
>> > --
>> >
>> > Gregory S. Shatan ï Abelman Frayne & Schwab
>> >
>> > 666 Third Avenue ï New York, NY 10017-5621
>> >
>> > Direct  212-885-9253 | Main 212-949-9022
>> >
>> > Fax  212-949-9190 | Cell 917-816-6428
>> >
>> > gsshatan at lawabel.com
>> >
>> > ICANN-related: gregshatanipc at gmail.com
>> >
>> > www.lawabel.com
>> >
>> >
>> > _______________________________________________
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>> >
>>
>>
>
>
> --
>
> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>
> *666 Third Avenue **ï** New York, NY 10017-5621*
>
> *Direct*  212-885-9253 *| **Main* 212-949-9022
>
> *Fax*  212-949-9190 *|* *Cell *917-816-6428
>
> *gsshatan at lawabel.com <gsshatan at lawabel.com>*
>
> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com> *
>
> *www.lawabel.com <http://www.lawabel.com/>*
>
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