[Community-Discuss] Fwd: AFRINIC - Matters Arising

[Mike Silber]

Hi Badru

I agree with you that these issues should not be swept under the carpet, but I disagree on some of the alternatives you are suggesting.

More in-line below.

Regards

Mike

> On 8 Jul 2016, at 16:21, Badru Ntege <badru.ntege at nftconsult.com> wrote:
> 
..
> What has seemed to bring this discussion up in my opinion is the use of Mauritian law in some instances in the past by individuals to either circumvent or challenge the bylaws.
> 
Why is this necessary? Why do you persist with this sort of attach on “individuals”. It really does you and your position as a leader in the community no credit and comes across as petty.

> There is a need to open dialogue on how the two are aligned to prevent us constantly coming to this issue.

You have the issue exactly right - ALIGNMENT, not replacement!
> 
> What we also need to separate that changing the jurisdiction if that ends up to be the only way should never be linked to moving the HQ.  I think and feel Mauritius has been a good home for AfriNIC and should continue to be the home.
> 
> What we need to then do is look at what would be the ideal registration process for a community “bottom up” entity, and then engage our hosts to see if they are ready to give us that legal dispensation.  
> 
Respectfully - I think that is precisely the incorrect approach. From my detailed knowledge of two jurisdictions and a passing knowledge of several others, we will have similar (or different) issues in almost every jurisdiction.

We have AfriNIC the corporation and AfriNIC the community and the problem is the connection between the two - it is NOT the jurisdiction or the relevant company law. If we can get that interface correct - that should resolve most of the issues that have been identified.

Personally I think there are some good lessons on what can be done (as well as what should not be done) in the IANA transition process. Seun and Fiona (as the most active from this community AFAIK) may want to comment here as well - but there are ways to ensure that the corporation “belongs” to the community, while the staff can get on with running the corporation and the board can provide direction and oversight in accordance with their fiduciary obligations.

The budget is a perfect example: the staff prepare the budget and execute against the approved budget, the board approves the budget …. but where is the community. The community right now feels excluded. IMO the answer is not to hand the preparation or approval of the budget to the community! IMO the answer is to restructure the process to ensure the community is included in the preparation, the input of the community is sought before approval and the community is aware of performance against budget.

First - that requires multi-year budgets, otherwise that process is too cumbersome. Second - that process can be built on top of almost any company law or jurisdictional requirements. 

In essence it is running DUAL STACK governance! It requires a bit of creativity and some problem solving skills, but it is a lot more effective that the binary options you are suggesting.

> Failing that we can then ask out of our 53 potential regional states which one is prepared to give us that dispensation so we can register in that state.

Most countries allow company registrations in their jurisdiction. I am not sure what dispensation you are suggesting? I hope you are not suggesting we try create our own form of corporation? That is so capable of capture and the time and effort involved in making it up would be immense. I don’t think a “make it up as we go along” approach or special dispensations subject to the whim of the leadership at the time is really what we are after.

>  AfriNIC can then be registered in that country as a legal entity but still maintain its HQ in Mauritius.

That is likely to have significant tax consequences.

> 
> My suggestion as had been suggested a few years back a body of community members plus some board members be set up in an adhoc committee to explore this and make recommendations to the community at the next AGMM.  
> 
I would propose that we rather use the (to be formed) governance committee to see how we can dual stack community governance and corporate governance.

Personally I am VERY frustrated that we have been talking about a governance committee since Djibouti and have seen some useful documents - but no action. This is precisely the point for which the committee was mooted by Fiona - so why not use it instead of creating more ad hoc structures?


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