[Community-Discuss] [Board-Discuss] Requests and questions

Tue Oct 3 12:54:46 UTC 2017

Hi Sunday,

While I will need to take some time to digest these responses - I do have some initial comments.

Firstly - and I apologise for this - I made an  error in my request so this may be partially my mistake- what I should have said was not the companies act - but the competitions act of 2007.

And - the same question still applies.

The board are the owners of the company - the board holds the fiduciary duty - and the board holds liability.  The board is now facing a direct question of if the company is in violation of the competitions act - and to investigate it.  The PDP and the policies - have no foundation in law beyond the bylaws - and I believe it is an EXTREMELY legally dubious assertion that the board can refuse to investigate the companies legal liability in the face of potential  violation of the law by a referral to policy and the companies bylaws.

It is really simple - a companies bylaws are subservient to the governing law of the country in which the company is domiciled.  It is not possible to create a document that places the company above the relevant legisilation.

So - let me try again - and I will put these questions more bluntly:

  1.  The competitions act of 2007, section 41.1 sub section b lists the criteria for what are defined as horizontal agreements - and since the definition of the a company in the context of the act makes it clear that the agreement can be between entities both domiciled in Mauritius and globally - I would ask how the division of regions by the ICP-2 and the practice of not allowing the free transfer of space to a competitive entity does not fall foul of this
  2.  Yes - in the case of section 41 - that refers to agreements that are collusive in nature - however - even if said agreements are deemed to be non-collusive - I cannot see how they do not fall foul of section 44.b
  3.  It is clear that AfriNIC falls under the definition of a monopoly as per section 46.1.a
  4.  I would like to understand why from AfriNIC's perspective considering the definition in 46.1.a they do not fall subject to clause 46.2.a and 46.2.b when they have no transfer policy that allows entities to choose another RIR

Effectively - what I am saying is this - the board has the power to implement policy - since the board owns the company - to the extent that the board even holds the power to change the bylaws to give themselves this power.  The board are the members - the community from everything I can see has zero recognition in law.  As such - if the company - and the board - is acting in a manner that is in direct violation of anti-trust legislation - the duty is on the board to rectify this situation or be held accountable.  The board cannot hide behind the community when they hold the fiduciary accountability for the functioning of the company.

As such - again - I ask you - will you commission an investigation into this - or is this board telling this community that in the face of questions about potentially operating outside of the bounds of the law - the board is wilfully choosing not to investigate and hence - violate their fiduciary duty as defined in the companies act.

I will comment more on the rest of the responses at a later point.

Andrew

From: Sunday Folayan [mailto:sfolayan at gmail.com]
Sent: 03 October 2017 15:32
To: AFRINIC Board of Directors' List <board at afrinic.net>; Andrew Alston <Andrew.Alston at liquidtelecom.com>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net>
Subject: Re: [Board-Discuss] [Community-Discuss] Requests and questions

Dear Mr Alston,

Hope you are fine.

Thank you for your questions and please accept my apology for the delay in responding to you. 2nd October was a Holiday here in Nigeria.

Kindly find hereunder the Board's answers to your questions:

  1.  Can the Board please commission an investigation into whether the lack of a bi-directional transfer policy puts AFRINIC at risk of running afoul of the Mauritius Companies Act of 2006, and in what areas, and exactly what the potential liability is?

  *   As you know, AFRINIC's 'Board of Directors' is bound by Section 143 of the Companies Act "to act in good faith and in the best interests of the company". In order to do so, the Board is bound by AFRINIC's Constitution, policies and best practices of corporate governance. You, as an ex-board member know that AFRINIC Board of directors makes effort to keep away from interfering in policy discussions as a Board, irrespective of whether it is the in-bound transfer or the bi-directional transfer or any other policy to preserve the core principle of "bottom-up" process as indicated in AFRINIC PDP. It is not possible to assess whether there is a risk or a potential liability under the Mauritian Companies Act 2001 in the absence of a proposal about bi-directional transfers. Given that the policies for number resources are determined by the Internet Community, it is up to the Community to take the initiative to propose a bi-directional transfer policy if it believes that there is a need for such a policy.

2. Can the Board please advise the time frames required to commence such an investigation, and once said investigation has been commissioned, advise on the time frames to complete said investigation, and once concluded advise the community of the full results of said investigation.

  *   If you see a potential or real risk on AFRINIC because of the absence of the bi-directional transfer policy with regards to the Mauritius Companies Act, let us know in which part or article in the Mauritian Companies Act you feel such risks may exist for AFRINIC Ltd.  The Board will ask the AFRINIC's legal counsel to investigate it and prepare a detailed report about that risk to be published for the community. Right now, AFRINIC's legal counsel is of the opinion that there is no current risk of the absence of such policy, in as much as the community is not approving such policy for the AFRINIC region.

3. Can the Board please investigate if the proceedings of Board Sub-Committees, under Mauritian Governance, form part of Board proceedings, and if they do, advise the community when the meetings of said proceedings shall be published as per the agreement to publish the minutes of board meetings.

  *   These sub-committees report to the Board as you know in each Board meeting and any report emanating from these committees come to the Board for actions thereon. These reports are discussed during Board meetings, and such discussions form part of the Board proceedings and are minuted.  The reports themselves remain internal Board documents.

4. Can the Board please commission an investigation into the limits that the RSA can be modified without member consent in the context of Mauritian law and advise the community of the results (Under Mauritian Law, can a contract be changed without the consent of both parties, to the detriment of one, irrespective of what is already signed).

Kindly, find the following reply from AFRINIC's legal counsel:

  *   The RSA is a contract between the individual member and AFRINIC. Modification thereto warrants the consent of both parties. It has always been the practice to cause amendments to the RSA to be (i) subject to public consultation (ii) community's approval. This is a very germane application of the laws of contract and there is no warrant for any investigation.

In  addition, please note that Article 1(b) of the Bylaws explicitly gives AFRINIC the right to change the RSA, and to terminate the services if the member does not consent to the change.

5. In addition to my request this morning on the members list requesting the board to check if any procedures and policies required by any MOU to which AFRINIC is a signatory are missing, can the Board please investigate if there are any policies, procedures or committees that are required by a.) the CPM  b.)The Bylaws c.) the companies Act d.) any other source which binds the company and advise to the community of a.) the time frames to complete said investigation and b.) once known, the full list of outstanding policies / procedures/ committees and c.) the time frames to rectify these areas.

  *   The Board as you know constituted a committee to review existing MoU's and report to the Board on their status, that committee has submitted their report and the board is reviewing and addressing the minor issues observed in the report.

For the CPM there are two committees mentioned in the PDP section of the CPM.

i) The Appeal Committee, which is already in the process of being constituted.

ii) The Recall committee which is only event driven and not a standing committee will be constituted by the Board whenever required.

6. Can the Board provide this community with an explanation as to the requirements for financial transparency for organizations that AFRINIC provides funds for.

  *   "The Board is bound by Section 143 of the Companies Act. So long as funding organizations the Board is bound to go by theses provisions. Where the Board is satisfied that it has good and reasonable cause to fund any organization, the resolution authorizing such funding will reflect same. It is not within the Board's powers to require the details of the financial management of the funded organization." That said, AFRINIC board reports to members and the community how funds are being expended during the AGMM and the same is covered in our annual report. The Board may provide more details on any specific line items from such report if requested by members.

7. The Board committed to a response on potential violations of section 143 of the companies act - can we get a time frame as to when this response will be forthcoming

  *   The Board sought legal advice on this issue, and it does not seem that there has been any case of directors having contravened Section 143 of the Companies' Act.

8. Is the Board prepared to commit to providing this community with reports from any member of the Board attending conferences on AFRINIC's behalf as to what was done at the meeting and the advantage of having the board member there - this is simply so that we know that members money that is spent in a justifiable manner. (As a note - I am more than happy to provide this community with a full report from the RIPE trip that I took earlier this year that details exactly what was done there if so desired)

  *   "It is the Board's responsibility to ensure in the first place that the participation of any Board member in an event on behalf of the Board was worthwhile and that it was done in the best interest of the company. The Board has ensured that such responsibility is met. In the event that there is a significant outcome from a meeting, then the outcome will be reported to the community.  Also, when there is a meeting of the Board, like the retreat or any other strategic meeting, the board does update the community and will continue to do so.

9. Is the Board prepared to publish quarterly financial reports to the community so that all financial analysis does not have to be done immediately prior to an SGMM/AGMM

  *   "The Board is already considering this and we will start with publishing Bi-Annual Financial Report so, please watch out for the unaudited financial report for the first half of the 2017 financial year".

10. Is the Board prepared to publish minutes of the Board sub-committee meetings in line with the NCCG recommendations?

  *   The National Code of Corporate Governance advocates transparency and the "apply and explain" principle. The Code specifies that Committees are "a mechanism for assisting the Board and its Directors in discharging their duties through a more comprehensive evaluation of specific issues, followed by well-considered recommendations to the Board." The Code at page (18) makes it an obligation of these sub-committees to be transparent to the Board and to practice full disclosure (to the Board).  On page (19) there's a requirement for Committee minutes to be submitted to the Board for noting.  There is no obligation in the NCCG for Committee minutes to be published.  The Board has no legal obligations to do so under the Companies' Act either. Also the Board Audit and Finance Sub-committees report and present their work to the community during the AGMM, and the floor is open for members/community questions

Best Regards,

Sunday Folayan

Chair, AFRINIC BoD

On 24/09/2017 20:07, Sunday Folayan wrote:

Dear Mr Alston,

2nd October 2017.

Thanks and Regards ...

Sunday.
On 22/09/2017 22:58, Andrew Alston wrote:
Sunday - let us be clear here - is that two weeks since the original expiry date 10 days ago?

Is that 10 days from today?  Is that 14 days from today?  Sorry - but after you've missed your own deadline by 10 days and taken 10 days to request the extension - it now becomes incumbent on you to give specifics as to exactly when we can expect the answers you committed to, so let's avoid any ambiguity here - can we have a date please

Andrew

From: Sunday Folayan [mailto:sfolayan at gmail.com]
Sent: 23 September 2017 00:52
To: Andrew Alston <Andrew.Alston at liquidtelecom.com><mailto:Andrew.Alston at liquidtelecom.com>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net><mailto:community-discuss at afrinic.net>; AFRINIC Board of Directors' List <board at afrinic.net><mailto:board at afrinic.net>
Subject: Re: [Community-Discuss] Requests and questions

Dear Mr Alston,

Kindly accept my apology for a delayed response to your questions.

The response is pending the final consideration of the Board.

I will appreciate an extension of two weeks.

With kind regards ...

Sunday Folayan.
On 21/09/2017 23:32, Andrew Alston wrote:
Dear Sunday and Board of Directors,

It concerns me greatly that the elected board of a community based organisation would make clear and firm commitments to reverting back to this community on some pretty serious questions - then miss the deadline they themselves set with no explanation to the community who is waiting for answers.  And then, when questioned as to when the commitments made by the board would be met - stay entirely silent and say nothing.

I understand that the board is busy, but a commitment is a commitment, and it is not this community that set the time frames here - it was the board who promised such.

Again I ask - when will the board meet its commitments to this community that are clearly stated below?

Andrew

From: Andrew Alston [mailto:Andrew.Alston at liquidtelecom.com]
Sent: 18 September 2017 09:54
To: Sunday Folayan <sfolayan at gmail.com><mailto:sfolayan at gmail.com>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net><mailto:community-discuss at afrinic.net>; AFRINIC Board of Directors' List <board at afrinic.net><mailto:board at afrinic.net>
Subject: Re: [Community-Discuss] Requests and questions

Dear Sunday, Board of Directors.

As per the below, we were told we would have a response within 60 days - this is now 3 days overdue.

Can we please get an indication on when this commitment that was made will be met?

Thanks

Andrew

From: Sunday Folayan [mailto:sfolayan at gmail.com]
Sent: 15 July 2017 09:03
To: Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net<mailto:community-discuss at afrinic.net>>; AFRINIC Board of Directors' List <board at afrinic.net<mailto:board at afrinic.net>>
Subject: Re: [Community-Discuss] Requests and questions

Dear Mr Alston,

Thank you very much for your email and questions.

The Board will get back to you within the next 60 days.

Regards ...

Sunday.

On 14/07/2017 07:57, Andrew Alston wrote:
Dear AfriNIC Board,

I have been advised that when I had questions or request, that I put them in simple, direct requests.  The following are a list of requests

  1.  Can the board please commission an investigation into whether the lack of a bi-directional transfer policy puts AFRINIC at risk of running afoul of the Mauritius Companies Act of 2007, and in what areas, and exactly what the potential liability is.
  2.  Can the board please advise the time frames required to commence such an investigation, and once said investigation has been commissioned, advise on the time frames to complete said investigation, and once concluded advise the community of the full results of said investigation
  3.  Can the board please investigate if the proceedings of board sub-committees, under Mauritian governance, form part of board proceedings, and if they do, advise the community when the meetings of said proceedings shall be published as per the agreement to publish the minutes of board meetings.
  4.  Can the board please commission an investigation into the limits that the RSA can be modified without member consent in the context of Mauritian law and advise the community of the results (Under Mauritian law, can a contract be changed without the consent of both parties, to the detriment of one, irrespective of what is already signed)
  5.  In addition to my request this morning on the members list requesting the board to check if any procedures and policies required by any MOU to which AFRINIC is a signatory are missing, can the board please investigate if there are any policies, procedures or committees that are required by a.) the CPM b.) The bylaws c.) the companies act d.) any other source which binds the company and advise the community of a.) the time frames to complete said investigation and b.) once known, the full list of outstanding policies/procedures/committees and c.) the time frames to rectify these areas.

I look forward to hearing the results of the above.

Many Thanks

Andrew Alston

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Sunday Adekunle Folayan

Managing Director

General data Engineering Services (SKANNET)

16 Oshin Road, Kongi Bodija, Ibadan - Nigeria

Phone: +234 802 291 2202, +234 816 866 7523

Email: sfolayan at skannet.com.ng<mailto:sfolayan at skannet.com.ng>, sfolayan at gmail.com<mailto:sfolayan at gmail.com>

---------------------------------------------------

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--------------------------------------------------

Sunday Adekunle Folayan

Managing Director

General data Engineering Services (SKANNET)

16 Oshin Road, Kongi Bodija, Ibadan - Nigeria

Phone: +234 802 291 2202, +234 816 866 7523

Email: sfolayan at skannet.com.ng<mailto:sfolayan at skannet.com.ng>, sfolayan at gmail.com<mailto:sfolayan at gmail.com>

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--------------------------------------------------

Sunday Adekunle Folayan

Managing Director

General data Engineering Services (SKANNET)

16 Oshin Road, Kongi Bodija, Ibadan - Nigeria

Phone: +234 802 291 2202, +234 816 866 7523

Email: sfolayan at skannet.com.ng<mailto:sfolayan at skannet.com.ng>, sfolayan at gmail.com<mailto:sfolayan at gmail.com>

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--------------------------------------------------

Sunday Adekunle Folayan

Managing Director

General data Engineering Services (SKANNET)

16 Oshin Road, Kongi Bodija, Ibadan - Nigeria

Phone: +234 802 291 2202, +234 816 866 7523

Email: sfolayan at skannet.com.ng<mailto:sfolayan at skannet.com.ng>, sfolayan at gmail.com<mailto:sfolayan at gmail.com>

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