[Community-Discuss] Accountability assessment - quorum
Andrew.Alston at liquidtelecom.com
Thu Sep 29 18:48:46 UTC 2016
Writing wearing my member hat….
The problem here and this is where it gets murky, by precedent and by what has always been communicated to the members, we effectively treat the members as shareholders. There are numerous instances where this has been stated both on the floor at AGMM’s and in emails. I would need to find specific examples, but I believe such has even been stated by council.
Now – this may or may not hold legal ground – I am no lawyer and don’t claim to be – but perhaps this opens a wider question – do we consider members to have the same rights as shareholders under the act. If so, we should probably enshrine this in the bylaws – if not – we should probably have something that clearly delineates the differences.
Again – if members are considered in terms of the bylaws as shareholders – the proxy limitation becomes invalid under that interpretation.
If we do not consider them as such in terms of the bylaws – it creates another problem – there are various parts of the companies that are very explicit in the rights that are assigned *only* to shareholders – and at that point we have to be consistent in our approach. We can’t pick and choose here.
Just my thoughts…
On 29/09/2016, 21:29, "Alan Barrett" <alan.barrett at afrinic.net> wrote:
> On 29 Sep 2016, at 22:09, Andrew Alston <Andrew.Alston at liquidtelecom.com> wrote:
> I am also far from convinced that the limitation on proxies would stand up to legal scrutiny and I would like to hear informed legal opinion on this.
> The fifth schedule of the companies act – clause 6, makes specific references to proxies – and is explicit that any member may appoint anyone as a proxy.
What the Mauritius Companies Act refers to as Members corresponds to what the AFRINIC Bylaws refer to as Registered Members.
> It also has a very specific clause in the companies act that states that the entirety of clause 6 applies “not withstanding any provision in any constitution adopted by the company.” The only exception to this is clause 6 (d)(v) which makes reference to the format of the actual proxy.
> My reading of this – and again, I would like to hear informed legal opinion, is that limitations on the proxy instruments that could impact on anyone appointing a proxy of their choice would be out of line with the companies act – and hence the limitation in our bylaws is illegal and cannot be enforced – since it is overridden by the act – which reigns supreme.
> Can any lawyers on this list please comment on the above?
I am not a lawyer, but I would assume that the Companies Act may override the Bylaws on matters relating to Directors and Registered Members, but not on matters relating to Resource Members (which is an AFRINIC construct that is not reflected in the Companies Act).
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