Dear Kathrin, Response between lines ... On 13/03/13 17:04, Schweppe, Kathrin wrote: Dear Juanjo, Your wording would explicitly invalidate the entire 12 pages of the entire governance model of the Collaboration Agreement by explicitly excluding that ? Maybe that was unintentional, either way, this is inacceptable. I cannot see how you can support your statement because of the wording I propose ... Let me elaborate on what I intended to fix with my wording and, if you can come with a better proposal, I would be happy to accept it. Your proposed wording was: The DOW prevails over the Collaboration Agreement. For the avoidance of doubt, where this governance model does not set up rules for the work between the FI PPP Project, the Collaboration agreement applies I clearly support the first sentence which is pretty clear. My problem was with the second sentence. My problem is that I believe that some people may interpret that second sentence as "for anything which is not described in this text for the governance model but is described in the Collaboration Agreement, the Collaboration Agreement applies". In other words, I don't want this sentence as to be interpreted like "This is the only part of the DoW where the DoW will prevail over the Collaboration Agreement". It should be clear that other parts of the DoW (not just this text about the governance model) prevail over what is said in the Collaboration Agreement. When you use the term "work" in the second sentence, work means everything not just governance. An alternative wording that I believe keeps the spirit of what you intend and also solves my concern would be: The DOW prevails over the Collaboration Agreement. For the avoidance of doubt, for those matters about which the DoW, including this governance model, set up rules for the work between the FI PPP Projects, the DoW prevails, otherwise the Collaboration Agreement applies. The proposed model is insufficient to regulate the entire governance. It is missing really essential rules for governance between the projects, e.g. the responsibilities of each FI PPP participants, rules for voting and composition of Boards etc. I do not think, it is wise to get rid of all of those rules, esp. those who are undisputed, with your wording. I understand the goal here more as some fine tuning of the governance model and not throwing the entire governance model away. I just want to make it clear that the rule "The DOW prevails over the Collaboration Agreement" applies for everything in the DoW, not just the text about the governance model. As I have just said, if you find a better wording that cover that concerns, please propose. I thought a while about the wording you used regarding mediation. First, I thought it was ok, taking into account the role of the EC foreseen in Rev. 3. However, thinking and analyzing it once more with a changed role of the EC addressing the anti-trust law issues on the EIB, it appeared to me, that a dispute with the EC could appear under this governance model. Dispute resolution with the EC in a FP 7 project is regulated in the Core Grant Agreement S. 9 and with mediation regarding the Governance model for the EIB. The Grant Agreement says clearly that dispute resolution is before the competent court of Brussels without any possibility of mediation with the EC. Having these rules in mind, I doubt, that the EC is accepting mediation on matters of the EIB and they will regard the wording, in so far as it is binding the EC, as invalid. As my proposed wording is emphasizing the choice of the partners regarding mediation, meaning in essence the same as the old wording, it avoids confusion regarding the disputes with the EC. Honestly, I don't think we were trying (nor should try) to cover disputes with the EC. We were trying to resolve dispute between projects. Therefore, my wording (which was based on what we sent to the EC several days ago) fits well. I also tried to accommodate IBM's comments because they object to talk about "professional mediation" which you introduced here. Best regards, -- Juanjo Thanks for your understanding, Kathrin Kathrin Schweppe, LL.M. Legal Counsel Global Legal SAP AG Dietmar-Hopp-Allee 16 69190 Walldorf, Germany T +49 6227 7-64369 F +49 6227 78-54177 E kathrin.schweppe at sap.com http://www.sap.com<http://www.sap.com/> Pflichtangaben/Mandatory Disclosure Statements: http://www.sap.com/company/legal/impressum.epx Diese E-Mail kann Betriebs- oder Geschäftsgeheimnisse oder sonstige vertrauliche Informationen enthalten. Sollten Sie diese E-Mail irrtümlich erhalten haben, ist Ihnen eine Kenntnisnahme des Inhalts, eine Vervielfältigung oder Weitergabe der E-Mail ausdrücklich untersagt. Bitte benachrichtigen Sie uns und vernichten Sie die empfangene E-Mail. Vielen Dank. From: Juanjo Hierro [mailto:jhierro at tid.es] Sent: Mittwoch, 13. März 2013 14:22 To: Schweppe, Kathrin Cc: 'fiware-pcc at lists.fi-ware.eu<mailto:fiware-pcc at lists.fi-ware.eu>' (fiware-pcc at lists.fi-ware.eu<mailto:fiware-pcc at lists.fi-ware.eu>) (fiware-pcc at lists.fi-ware.eu<mailto:fiware-pcc at lists.fi-ware.eu>); fiware-ga at lists.fi-ware.eu<mailto:fiware-ga at lists.fi-ware.eu>; Neidecker-Lutz, Burkhard; 'fiware-legal at lists.fi-ware.eu<mailto:fiware-legal at lists.fi-ware.eu>' (fiware-legal at lists.fi-ware.eu<mailto:fiware-legal at lists.fi-ware.eu>) Subject: Re: Governance Model FI PPP Rev. 6 Dear Kathrin, I believe your proposal regarding the prevalence is ok, assuming it is clear that all the DoW has prevalence, not just the fragment of text that will become part of the governance description. Indeed, I believe it would be better if we say: The DOW prevails over the Collaboration Agreement. For the avoidance of doubt, where this governance model does not set up rules for the governance between the FI PPP Projects, the Collaboration agreement applies. Regarding your proposed changes regarding mediation, I don't understand why you are proposing something different than what we proposed after our PCC confcall on the matter. Regarding the other changes you propose, I'm fine with them. Indeed they are capturing what we proposed last time to David. Please clarify me the question on mediation so that I can forward this on behalf of FI-WARE. Opinions from others are of course welcome. Best regards, -- Juanjo ------------- Product Development and Innovation (PDI) - Telefonica Digital website: www.tid.es<http://www.tid.es> email: jhierro at tid.es<mailto:jhierro at tid.es> twitter: twitter.com/JuanjoHierro FI-WARE (European Future Internet Core Platform) Coordinator and Chief Architect You can follow FI-WARE at: website: http://www.fi-ware.eu facebook: http://www.facebook.com/pages/FI-WARE/251366491587242 twitter: http://twitter.com/FIware linkedIn: http://www.linkedin.com/groups/FIWARE-4239932 On 12/03/13 17:09, Schweppe, Kathrin wrote: Dear Juanjo, please find attached SAP's revision. There is still missing wording regarding the prevalence. I have inserted two sentences regarding the prevalence, which I think are matching a) the Commission's view regarding the prevalence of documents and b) the applicability of the Collaboration Agreement. If we do not include any clarification, this text is a fast track to breach the Collaboration Agreement. Please note, that David Kennedy did not take over the agreed wording from FI-Ware. He thinks the Project Coordinators and representatives should be only able to decide upon the which items should be on the agenda of the Steering Board rather than deciding the items themselves. This would make the decision power of the Steering Board pretty toothless. In S. 3.2. I included the same sentence as the mandate of the Steering Board Member. This should be consistent throughout the entire governance model. Furthermore, the choice of mediation should be the choice of the partners. Please note, that in the case of a dispute between the EC and a partner, the Grant Agreement foresees a dispute resolution via the competent court of Brussels. It might be worth to reconsider any wording regarding mediation as the EC, or better their Legal Department could consider the mediation sentences in conflict with the Grant Agreement. Thanks and best regards, ________________________________ Este mensaje se dirige exclusivamente a su destinatario. Puede consultar nuestra política de envío y recepción de correo electrónico en el enlace situado más abajo. This message is intended exclusively for its addressee. We only send and receive email on the basis of the terms set out at: http://www.tid.es/ES/PAGINAS/disclaimer.aspx ________________________________ Este mensaje se dirige exclusivamente a su destinatario. Puede consultar nuestra política de envío y recepción de correo electrónico en el enlace situado más abajo. This message is intended exclusively for its addressee. We only send and receive email on the basis of the terms set out at: http://www.tid.es/ES/PAGINAS/disclaimer.aspx -------------- next part -------------- An HTML attachment was scrubbed... URL: <https://lists.fiware.org/private/fiware-legal/attachments/20130313/3a41b095/attachment.html>
You can get more information about our cookies and privacy policies clicking on the following links: Privacy policy Cookies policy