[address-policy-wg] 2013-03 New Draft Document and Impact Analysis Published (No Need - Post-Depletion Reality Adjustment and Clean up)

On 05/08/2013 12:24, Milton L Mueller wrote:
>
> MM: Exactly my point! The existence of a needs assessment, which gives RIPE-NCC's imprimatur to the outcome, is much more likely to entangle the NCC in these things than its absence. The staff's legal assessment needs to be re-thought.
Just for the record and to be pedantic, the legal assessment was made by 
external legal consultants. We do not have an expert in EU competition 
law on the staff.
>
> Addressing also Nigel Titley's argument, it's unfortunate that he has seized on the existence of a single phrase ("it seems obvious to me"), a phrase not at all essential to the point being made, to avoid the real discussion. Take that phrase out and the same refutations apply to your lawyers' statement.
I'm sorry, I'd forgotten that you seem to have little or no sense of 
humour. My apologies, I'll try and remember in future.
>
> They need to explain
> a) whether there is any REAL litigation in which the existence of needs assessment has actually shielded RIPE-NCC from a claim;
No, we have never seen any REAL litigation. This is a feature and not a 
bug. It would be perfectly possible to argue that the existence of needs 
assessment has meant that we have seen no litigation at all. We prefer 
it this way.
> b) how the use of needs assessments make any less likely claims made purely for "publicity" purposes;
This wasn't what the legal advice said. It said that needs assessment 
would likely result in fewer claims, full stop. And in the event of 
fewer claims there is a lower probability that the the RIPE NCC would be 
involved "for publicity purposes" or indeed for any purposes whatsoever.
>   
> c) why RIPE-NCC's involvement in allocations of a highly scarce and increasingly contested resource via needs assessment wouldn't make it _more_ likely to be entangled in litigation
>
because we have a different legal environment in the EU to the US. 
Frivolous claims tend to be dismissed much earlier in the process and 
the existence of a well documented and well established process which 
has worked well in the past tends to act as a deterrent.

Milton, I'm happy to listen to you argue as an economist, but you are 
neither a lawyer nor an expert in EU legal practice. Neither am I and I 
would expect those listening to me to take whatever I say on legal 
issues with a shovelful of salt. I've stepped way outside my area of 
expertise in this matter, which is why the RIPE NCC pays lawyers to give 
legal advice and not me.

My initial posting in this thread was merely to bring the details of the 
advice to your attention. You now have actually read the impact 
assessment and I'm happy that you are now better informed. I'll now step 
back again.

Nigel
Chairman, RIPE NCC board