[Community-Discuss] Update on legal case

[JORDI PALET MARTINEZ]

Very good observations Paul.

 

My doubt here is if there was sufficient evidence for a “real disk of dissipation”. I doubt AFRINIC is such kind of organization where the Board can take the risk of doing so without consulting the membership. Otherwise, the Board could be committing presumable illegal actions, which may have criminal personal consequences for each them.

 

I’m not convinced the Court has a good understanding of what is AFRINIC and that if AFRINIC doesn’t have funds to continue operations, the consequences for all the Internet community, not just AFRINIC members, could be generating more damages than what the order is trying to protect.

 

Court orders must be always well balanced.

 

Regarding the arbitration, I may be wrong, but I don’t recall having seen that in any of the RIRs documents. Definitively it is a good point.

 

Regards,

Jordi

@jordipalet

 

 

 

I am not sure I understand why the reaction being given by so many people is to question or criticize the courts of Mauritius, I also wonder whether they include the Judicial Committee of the Privy Council (JCPC) in this questioning of capability. No doubt the fact that Mauritius can be painted as an internationalist jurisdiction and that it remains a commonwealth jurisdiction with appeals at the JCPC and I am surprised that nobody has attacked Mauritius as a colonial and post-colonial project or some other such epithet.

 

While I agree that generally we should wait to get more from the courts I can't help but identify a worrying trend of groundwork being laid to rally behind the court if it finds against Cloud Innovation and to launch a specious attack on the court if it finds for Cloud Innovation. This is quite deleterious. I am therefore going to reply to somebody whose good faith I do not doubt and who I am generally in agreement with on the big picture issues but who I fear is making adverse presumptions about the mechanics of legal systems at play. 

 

The freezing of the bank accounts is most certainly a truly startling
development and one that would most certainly NOT have happened in the
United States, or, I expect, in most other civilized countries, at least
not prior to a full trial on the merits and the actual conclusion of the
over-arching legal case.

 

There is nothing uniquely peculiar about a court granting an attachment or injunction against a litigants domestic bank accounts. Mareva injunctions (http://templegroup.mu/mareva-injunction-and-solid-evidence-of-a-real-risk-of-dissipation-of-assets-sun-pat-g-k-f-ors-v-thomson-c-f-ors-2019-scj-5/ is a pretty nice write up from a non-Mauritius perspective) are certainly not unique to Mauritius - hell the term is from an English case. And I've managed to secure an interdict in South Africa on a bank account pending determination of a main action and just in the nick of time - funds on their way out the country, getting an interdict after hours on a Friday. The main reason it happens is if a court is satisfied that the litigant will dissipate their property or assets to frustrate the plaintiff by the time trial occurs. 

 

There are a couple of other reasons and a court granting an attachment or freeze on bank accounts and it usually speaks volumes about the party whose experiencing the attachment. Ships get attached all the time at the commencement of an action ("arrested" the ship is arrested but for obvious reasons not even the United States puts the physical ship in a county jail after arresting it) and counterfeit (or allegedly counterfeit) and patent infringing goods are possibly too easy to get an attachment on in many jurisdictions - and IP lawyers can argue about this for weeks on end.
Ultimately I am not sure why you are presuming this is a "development" related to Mauritius because it simply isn't. Unless you exclude the United Kingdom, Switzerland, Canada, Australia, Germany, Netherlands and France from your definition of "civilized countries" the assertion reeks of a Yankee mischaracterization. There is a broad scope to debate whether particular jurisdictions strike exactly the right balances and the like but I am not aware of any litigant other than Afrinic finding Mauritius to be a jurisdiction that they regret being subject to. Even if there is something a person doesn't like about Mauritius law or legal system little has changed since the decision to incorporate in that jurisdiction arises. I can off hand think of plenty of other jurisdictions where I'd be concerned about foreign firms being able to put me on a barrel through finding some basis upon which draconian measures are practiced for some cause of action or another. 

At present Apple is engaged in a little squabble where it has tried to tell the English courts that they can't restrain imports into the country or set license rates which Apple finds commercially unacceptable. Trust me if Apple persists in playing chicken with the English (and Welsh) courts they will find themselves on the back end of things, and Afrinic shouldn't be perceived to be or actually be playing chicken with courts. My hunch is that somebody representing Afrinic thought they could tell the Mauritius courts what they could and couldn't do. If this hunch is correct it would represent the sort of insufferable arrogance which could see the organization destroyed. This would clearly not be in the interests of the members nor of the region. Firms do this when they think they are indispensable and legal representatives may push their luck if they think that a court will be hesitant to act against their client. Ask Mr Zuma (who is in prison right now) and his legal team about the assumption a party can make that they can bolster against a court. Even if my hunch is wrong and the reason the court has concluded that there is a risk of dissipation is different or there is some special course of proceedings that can get a Mauritius domiciled entity over a barrel the organization needs to address the source of the risk of adverse legal proceedings.

It is therefore strongly a case that Afrinic needs to have the disputes that are arising resolved expeditiously and so the organization needs to commit to commercial resolution process such as arbitration rather than pretending to be a government. The lack of a dispute resolution by mediation and arbitration clause in the service agreement is an inexcusable omission from Afrinic and it would certainly make things considerably better if a justifiable process preceded the organization terminating the agreement 

While I am not certain as to whether this is how it will play out if Afrinic purported to terminate the contract with Cloud Innovation on spurious grounds and this termination is viewed as repudiation by Afrinic it is quite easy that the damages are considerable, this would have been avoided if the service agreement was differently designed. The attempt in the service agreements to irrationally prejudice a member and favour the organization cannot end well.


But lets hold to a United States standard (which you assert is a jurisdiction where this would NOT happen). It most certainly is the case that on a daily basis in the United States injunctions taking the form of TROs (granted if there is irreparable harm threatened) and prejudgement attachment writs (which IIRC is available when there is liquidated damages arising from a grave breach of contract) are issued with the same effect  as preventing a party from undermining ongoing legal proceedings before the conclusion happens. While SCOTUS has quite clearly differentiated US jurisprudence from the UK injunction practice and I assume the French saisie conservatoire practice, the 5 v 4 decision of SCOTUS is not without criticism (https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4076&context=flr) and as is always the case lawyers will find a way to promote their clients interests. Thus between arrests, writs and TROs it is difficult argue a substantive departure from the fact that a litigant with standing before a court who would find themself with a brutum fulmen if the court does not grant some relief in equity to restrain the defending party from dissipating assets will readily find in any civilized jurisdiction a remedy of some kind.

Countries which do not provide this ability for a litigant are frankly the ones which are uncivilized - ubi ius ibi remedium  and all that.
I'd go so far as to say that bank accounts are definitely frozen daily in every federal circuit and in many federal district courts (I am quite sure both the Southern District of New York and the Northern District of Illinois have standardized bank restraint prayer forms of practice that both the feds and litigants faced with a recalcitrant and dissipating defendant can and do use). In the US of course a plaintiff who has a lien, such as the IRS, of course gets an attachment via the lien (rather than the proven liability) and then you really are faced with a headache. 

 

The fact that it is usually criminal enterprises who find their bank accounts attached speaks to what a person has to satisfy a court of before getting this relief. It is also why it is quite bizarre that the organization is publicly boasting of the ability to circumvent the order. If anything I think the general sense of foreign observers is that government in the United States is too capable of obtaining restraint relief and private actors not enough. If Afrinic was based in the United States when your revelations about Ernest broke (or if it involved US nationals committing the bribery) it would be the US asking to freeze bank accounts - as they did with FIFA: https://www.bbc.com/news/world-us-canada-35119240


The point is that whether an English-esque jurisdiction like Mauritius (the jurisdiction not the language, appeals from the Mauritius Supreme Court ultimately lies to the JCPC in London and this does actually occur - there are at least two matters of the calendar at present) or a jurisdiction like South Africa or the United States (common law jurisdictions which have deviated from the English courts nomenclature practice or principles on this issue) or a civil law jurisdiction you will find that courts can restrain a malevolent (in the opinion of the court) counterparty when a proper case to do so is made.

Many individuals and organization maintain banking facilities in Mauritius.
The question is what did Afrinic do to cause a Mauritian court to conclude that they present a risk of defying the courts orders and ruling or otherwise dissipating property or frustrating the rights of another litigant. 
Because neither party is giving us actual documentation from the courts we have to assume that both parties are "in the wrong" and that the Mauritius courts will give no party preferential treatment. For this reason if we hear of a matter being struck from the roll or an order lapsing or the like we have to assume that its a procedural issue and await the full determination of the matter on the merits, similarly if we hear of ordinary relief being granted by a court of a procedural nature its to keep the status quo pending determination of merits. If we witness relief being granted that requires the court to be satisfied that the party against whom the relief is given has done something extraordinarily bad then we can assume the later. If the parties give us the information candidly we can get a better idea of what is for what but honestly the sooner the parties get the disputes handled in commercial dispute resolution mechanisms the better.

Disparaging the Mauritius courts is wholly out of place and counter-productive - lets hope Afrinic doesn't take any further to doing so as it will not end well. The country has a credible judiciary and regard for the rule of law is on track relative to the continent (at present I think Rwanda and Namibia are fairing better on some indices but longer term trends mean unless Afrinic wants to relocate to Namibia - which has a considerably less developed banking and related sectors and would mean abandoning the Judicial Committee of the Privy Council. It might mean that commercial lawyers in Hong Kong and Singapore are less in waters but to what benefit for the system. Personally I quite like the fact that Afrinic is in a jurisdiction which has not abandoned the Judicial Committee of the Privy Council and certainly prefer it to a jurisdiction which has kept the wigs and trappings while having a general erosion in other ways).

In so far as a section of the membership is pushing the organization to adopt a xenophobic anti-rule of law based approach those members other members must distance themselves from such sentiment - this likely includes joining in on an action for the dissolution of the organization even if such outcome is sub-optimal. The Mauritian courts have restrained Afrinic's banking accounts this should be a "come to Jesus moment" for the organization, sadly if the chatter on this mailing list is anything to go by members are going to have to find themselves taking action or the Board is going to have to come clean about this "assisted review" and what steps it has taken or authorized to cause a court to restrain bank accounts. We received communications pronouncing victory in litigation only for it to turn out that less than a week later to be quite different. Since then we've had additional board resignations and uninformative updates but no commitment of the organization to defend itself while respecting and complying with the courts.

All of this is regardless of the fundamental merits of whether the considerable allocations made to certain members. Such determination of merits should be done on a fact and law basis by an appropriate forum. The Board and staff are clearly not such an appropriate forum.

 

Moreover

I have previously mentioned other reasons that I and others might have
for harboring displeasure with respect to the Mauritian legal system.
There is no need for me to repeat those now, and in fact I have been
cautioned against doing so again out of concern that either I or some
AFRRINIC staff members might, as a result, be convicted of the heinous
offense of "disrespecting the court" and that we might thus find ourselves
dragged away in chains to what is no doubt some special Mauritian dark
and dank dungeon specially reserved for offenders of such a unique caliber.

You mean like Steven Dozinger who a single US judge has caused to be detained without trial for more than 2 years? Personal liberty is a much greater infringement than bank accounts.
https://www.theguardian.com/us-news/2021/mar/28/chevron-lawyer-steven-donziger-ecuador-house-arrest . 

There is no reason to disrespect the courts, there is every reason question the commitment of role players investigate and prosecute criminal actors. One cannot but wonder whether the reason for honing in on a large resource member is as a distraction - its a nice narrative, the organization is "under threat" from "foreigners" and "capitalists" rather than has been gutted by corruption. This narrative is bullshit, if there is misconduct on the part of Cloud Innovation then there is plenty of room within the Mauritian and Seychelles legal systems to hold them accountable. If there is a genuine felt policy gap then there is a process to develop policies.

 

Although if you want to take a course of disrespecting courts in the hope of ending up in a dank dungeon I am quite sure arrangements to use the Tower as more than a tourist destination can be made - that will certainly be darker and more dank as a dungeon than anything on a tropical island.

 


Whether that is the best way to run a national legal system or not is,
I suppose, in the eye of the beholder. All I can say for sure is that at
this moment I am really quite glad that I personally do not own any bank
accounts in Mauritius. 

 

Many multinationals who've got capabilities to perform a proper assessment of risk are very happy to have bank accounts in Mauritius and I am quite certain that a lot of the motivation for Afrinic being domiciled in Mauritius was because several regional organizations didn't want the bank accounts in South Africa. Undoubtedly if Afrinic was domiciled in Namibia we'd be sitting with complaints about the Namibian legal system today. I don't think you could end up in a dark and dank dungeon if for no other reason than the country is mostly sand. If anything the main fear any US citizen has is their bank accounts in foreign jurisdictions being frozen because of a squeeze from the US on other jurisdictions. I doubt any African dungeon can be worse than the PATH train service between New York and New Jersey.

 


In short, from where I am sitting, *everybody* is hiding something, and
I don't believe that any of this information hiding is being done for my
benefit -or- for the benefit of the AFRINIC community. The folks doing
the hiding are looking after their own interests.

 

I don't think anybody with any understanding of these things doubts that people are hiding information. Personally I'd love to know exactly how the allocations were made and there is plenty of reason to suspect various things. The question is which organization owes a duty to the community and to its members? A commercial venture or a member based organization? The main thing the community needs to know right now is whether the hostmaster made the allocations of such large blocks in circumstances which Afrinic's records reveal is extra-ordinary. Consider the situation where the staff of Afrinic for corrupt purposes made such a large allocation to a firm where they were engaged as paid consultants in the hope of using same as a front. Or a situation in which an organization emphatically paid Afrinic a tidy sum for such a large allocation. In either circumstance it is against the members interests for the truth to be brushed aside and for the organization to through membership termination being adversely impaired, Afrinic has a corrupt interest in covering up and exactly what a person believes is just will depend from person to person but be intimately linked to the facts.

 

Its also worth pointing out that a party seeking ex parte relief has responsibility to be highly candid with the court (to take the court into its confidence as it were), on the 4th August the Mauritius courts could express extreme opprobrium against Cloud Innovation if same neglected to disclose material information - and their lawyers know this, so its fair to assume that they have avoided this risk by being candid at least with the court. 

 

But here is the major point - either Cloud Innovation or whichever predecessors they obtained transfer from - were legitimately allocated the address space or there was something untoward and covered up for many years by Afrinic. Asking them to provide the evidence to aide in destroying them is so profoundly contrary to a functioning justice system that any jurisdiction that doesn't want to be a banana republic will understand why its the case. Apart from self-preservation or the like there may be other reasons why they don't want to make certain disclosures - some of which may relate to actors who are hostile to a free and open Internet and for whom such information would be beneficial. Many concerns would evaporate if a credible process with trustworthy actors were involved. But this entire activity from Afrinic reeks of seeking to brush aside the hard questions and hope that some boogey man threat of foreigners will cause a glossing over.

 

I understand why the CEO might want to be cautious and not disclose as much as he should. What needs to end and end soon is a culture within the organization of believing it is too big to fail - because that attitude has caused it to fail and the sooner it admits this failure the sooner it can fix itself. This requires more than anything a decision from the Board, sadly we've already seen good members of the board resign and when one considers that a seat on the board was until recently held by the now disgraced Vika Mpisane it is difficult not to conclude that absent sufficient external pressure that actually has efficacy nothing is going to change.

 

In a world were nobody can be trusted it is best that the law rather than capricious men rule the roost. This is why as Andrew has already called for and I have put forward in the members discussion a meeting to fill the vacancy is needed, we should here more next week from the court but if Afrinic fails to get the injunction on their account lifted then it truly is time for the discussion to shift away from whether the Mauritius courts should be restraining the bank accounts and towards how does Afrinic resolve its dispute crisis.


Paul

_______________________________________________ Community-Discuss mailing list Community-Discuss at afrinic.net https://lists.afrinic.net/mailman/listinfo/community-discuss 



**********************************************
IPv4 is over
Are you ready for the new Internet ?
http://www.theipv6company.com
The IPv6 Company

This electronic message contains information which may be privileged or confidential. The information is intended to be for the exclusive use of the individual(s) named above and further non-explicilty authorized disclosure, copying, distribution or use of the contents of this information, even if partially, including attached files, is strictly prohibited and will be considered a criminal offense. If you are not the intended recipient be aware that any disclosure, copying, distribution or use of the contents of this information, even if partially, including attached files, is strictly prohibited, will be considered a criminal offense, so you must reply to the original sender to inform about this communication and delete it.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20210728/a55f7063/attachment.html>