[Community-Discuss] [rpd] Unaddressed queries by AFRINIC during AGMM

[Owen DeLong]

> On Jun 29, 2021, at 03:19 , Mike Silber <silber.mike at gmail.com> wrote:

> 

> Hi Owen

> 

>> On 29 Jun 2021, at 11:30, Owen DeLong via Community-Discuss <community-discuss at afrinic.net <mailto:community-discuss at afrinic.net>> wrote:

>> 

> 

> In your hypothetical example

> 

>> So let’s assume that a company operates a residential ISP in Botswana and also happens to be a registered broker trading addresses within policy in the ARIN, RIPE, and APNIC regions.

>> 

>> Are you saying that such an ISP should be banned from being an AFRINIC member merely because of their other business activities in other regions unrelated to their presence in Africa as an ISP?

>> 

>> This seems like a really bad idea from my perspective as I think AFRINIC would likely be subject to several serious legal challenges over such a situation. IANAL, but there are lawyers on this list and I invite them to comment if they don’t think such a prohibition would violate the companies act and most anti-trust regulatory frameworks in most countries.

> 

> So, IAAL. I cannot see the basis for the legal challenge you are suggesting. I cannot see how such a prohibition would violate the Mauritian Companies Act - in particular because resource members are not members of the company, but exist in a grey area being members of the organisation, but not the company. In addition, seeing as no resource members can become members of the company - a prohibition on an entity becoming a resource member (or being expelled as a resource member) cannot be contrary to the Companies Act.


So if a membership organization that is open to all service providers in the region is rejecting/terminating memberships solely on the base of their involvement in a particular legal second line of business outside the region and doing so to the detriment of their ability to provide the existing services in the region, you don’t believe that would be a form of tortious interference? Interesting. I defer to your greater expertise in this area, of course, but I find it surprising.


> The Mauritian competition framework does not provide for extraterritorial jurisdiction - so I fail to see what basis there would be for any potential anti-trust action?


This makes me think, perhaps you misunderstand my example, or seized upon a less than perfect detail vs. the intended concept.

Let’s try it a different way.

Let’s say that there are two ISPs operating in Mauritius. One of them also operates an IP Brokerage in the Netherlands trading in allocations/assignments issued by RIPE-NCC and operating entirely within the RIPE-NCC policies.

Would you still say that it’s legal OK for AFRINIC to reject/terminate the membership of the one operating the brokerage in the Netherlands on that basis?


> IMO the only action would be to ensure that the company complies with the Companies Act (and I don’t see how that would be an issue) and acts in accordance with its bylaws. 

> 

> In my view, the bylaws (read with validly passed policy) could validly restrict membership from entities that do not adhere to the policy / bylaws. It may not be practical or useful, but provided it follows proper process - I cannot see any basis for legal challenge.


Very interesting.

Owen

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