[Community-Discuss] Supreme Court Order in Relation to Cloud Innovation v AFRINIC

[tech]

This letter is a follow-up to the unfortunate incident arising from the actions taken by AFRINIC (African Network Information Centre), including terminating our (Cloud Innovation Ltd) membership and reclaiming our number resources which we consider to have been totally unnecessary, unreasonable, and unjust. The action has not caused only serious damage to Cloud Innovation and hundreds of its clients' businesses, but also to hundreds of millions of end-users who were potentially endangered at the same time.

 

We are pleased to announce that  urgent interim relief has been granted to Cloud Innovation by the Honourable Judge in Chambers of  the Supreme Court of Mauritius( herewith attached) to prevent AFRINIC from reclaiming our number resources in such illegal manner.  As a result of which,  Cloud Innovation will now be in a position to resume business as normal until the issues are resolved before the competent courts.. 

 

For the sake of clarity and transparency, we would share with you as set out below the background which led to the current state of affairs:

 

-    AFRINIC  issued a letter to Cloud Innovation on June 23, 2020, accusing Cloud Innovation of policy violations. AFRINIC threatened to take actions and demanded an immediate response within 14 days. Despite the short notice, Cloud Innovation investigated AFRINIC's accusations carefully. Cloud Innovation did not find any policy violations of its own but only AFRINIC's own misinterpretation of its policy document and errors in understanding the nature of BGP. Cloud Innovation duly issued a response on 13 July 2020, within the deadline set by AFRINIC to explain the misunderstanding of AFRINIC’s own documents and erroneous assertions regarding routing.

 

-     After eight months, AFRINIC issued a letter on 10 March 2021 ( being the first day Mauritius went into a second national lockdown due to COVID-19)  to Cloud Innovation, raising similar alleged breaches as those alleged in June 2020 but with  the following warning note:: 

 

To address the aforementioned issues, Cloud Innovation Ltd is hereby most formally required to promptly and accurately submit its “change request” in compliance with Clauses 4(a) and 2(d) of the RSA, as well as ensure full compliance with AFRINIC. The “change request” must

include:

I. Detailed utilisation information for all the aforementioned IPv4 prefixes including the services for which the resources are being used and country of service origin.

II. Planned utilisation of your remaining IPv4 space for the next 8 months

III.Your “change request”, if any, should reach AFRINIC by 12-04-2021, by the close of business.

AFRINIC shall consider the merits of your request, if any, and will in its sole discretion determine whether to terminate the RSA as well as to proceed with the reclaiming of the IPv4 Number Resources allocated to Cloud Innovation Ltd. You are further informed that AFRINIC shall not be held liable for any loss or damage of whatever nature arising out of the present notice or any action that AFRINIC may take in accordance thereof. Your “change request”, if any, should reach AFRINIC by 12-04-2021, by the close of business.AFRINIC shall consider the merits of your request, if any, and will in its sole discretion determine whether to terminate the RSA as well as to proceed with the reclaiming of the IPv4 Number Resources allocated to Cloud Innovation Ltd. You are further informed that AFRINIC shall not be held liable for any loss or damage of whatever nature arising out of the present notice or any action that AFRINIC may take in accordance thereof.

 

         The false accusations made by AFRINIC and our response/views are attached in a separate document (named:Chronology) for the benefit of all the community.. 

 

-       As the 3rd largest member of AFRINIC, Cloud Innovation serves hundreds of millions of end-users through hundreds of telecoms and ISPs around the world. The services, such as hosting websites, counts        for over 1.5 million websites hosted by Cloud Innovation's IP alone. Thus, there is no way, especially with the size of Cloud Innovation, to fully and wholly satisfy AFRINIC's request within the timeframe it provided. With the real threat of membership termination and hundreds of millions of users' connectivity on the line, Cloud Innovation was left with no option but to seek the mercy of the court in Mauritius during a period of lockdown with limited resources. An interim order of injunction was therefore issued by the Mauritius court on April 7,2021 to protect the interests of end-users and to forbid AFRINIC from acting irrationally.

 

 

-       By virtue of a judgment issued on the evening of  7 July 2021, the said injunction was lifted on the basis of a mere legal technicality basis, which was partially caused by the inability to provide a power of attorney to our lawyers in Mauritius during the total lockdown of Mauritius, a direct result of AFRINIC releasing such a letter to us on the  first day  of the Mauritius lockdown. 

 

-       In order to protect our interests and the hundreds of millions of users of number resources registered to us, we took immediate action by filing an appeal against the judgment on the very next day..

 

-       In order to safeguard its interests, Cloud Innovation had to again seek urgent relief before the Supreme Court of Mauritius.   By virtue of an interim order of injunction issued on 13 July 2021, AFRINIC has been restrained and prohibited from terminating our membership and reclaiming our number resources.   The said proceedings are now pending before the Supreme Court of Mauritius.

 

-       We welcome the urgent intervention of the Supreme Court of Mauritius for interim relief in order to protect our rights as a member. . We would like to inform those concerned that the operations of our number resources will revert to normal at the earliest as AFRINIC is under an obligation to comply with the Judge’s Order as attached. 

 

-       We wish to emphasise that as an AFRINIC member in good standing, we consistently abide by their policy and strive to contribute to the community to the best of our ability. We have never intended to take any action against AFRINIC but are obligated to take the appropriate measures to protect ourselves, the hundreds of our customers, and hundreds of millions of end-users.

 

-       We reserve full and absolute legal rights and remedies in respect to AFRINIC's actions against us.

 

We would also like to clarify that as the NRO has stated in their letter, "All RIRs, on occasion, face allegations of errors in implementation of policy or agreements, and such disputes, being routine in nature are best handled by the individual RIR and/or its community ", such routine disagreement (mostly in all the other RIRs, or AFRINIC before this management) is sorted by merely communicating between the tech team and the registration services department of the respective RIR. It has never come to such drastic actions before, like the RIR threatening and endangering the very stability of the Internet.

 

We trust the above has shed some light on the matter for all those concerned. We are grateful for the continued belief and support we have received from all of you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: alleged routing inconsistancy by AFRINIC.xlsx
Type: application/octet-stream
Size: 133104 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0002.obj>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Cloud Innovation Reply to AFRINIC.pdf
Type: application/pdf
Size: 428888 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0005.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: First Letter AFRINIC.pdf
Type: application/pdf
Size: 421859 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0006.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Cloud Innovation-3 problem with AFRINIC accusation.xlsx
Type: application/octet-stream
Size: 91129 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0003.obj>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Chronology.pdf
Type: application/pdf
Size: 100805 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0007.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Second Letter AFRINIC.pdf
Type: application/pdf
Size: 456359 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0008.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Court Ruling and our appeal.pdf
Type: application/pdf
Size: 491204 bytes
Desc: not available
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210714/03a25bc9/attachment-0009.pdf>