[Community-Discuss] Update on legal case

[Paul Hjul]

>

> 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



Thanks.

Ja it may well be that the Court erred in finding a real risk of
dissipation, there may well be less invasive means by which the court could
ensure that a party acting against Afrinic is not left without relief
because of dissipation. Urgent chamber processes do lend themselves to a
risk of judicial error but there are safeguards and follow up proceedings.
I am quite certain the court would grant Afrinic access to such funds as it
requires to continue to function if a proper application that was candid
was put forward. Unfortunately the document which has been posted suggests
that rather than endeavouring to get a suitable amendment Afrinic sought to
leave the litigant without relief at all - hence the court dismissing the
urgent application and letting it stand as a summons for a hearing on the
4th August.

It is certainly entirely open to critique the order or to feel that it
doesn't strike entirely the correct balance but understanding that Courts
can end up being quite a blunt instrument usually causes rational actors to
move for dispute resolution which is less "winner takes all" especially in
the commercial space.

My inclination is to suspect that the Court has a better understanding of
what Afrnic's role is than many other people and that any misunderstanding
by the Court should be placed at the feet of Afrnic's legal team.
Afrnic might be a somewhat peculiar organization but it isn't uniquely
esoteric. I do fear that because a Court is acting at the petition of a
litigant that the overall interests of the community may be infringed and I
would be a lot more comfortable if an amicus was brought into the mix.
Again though subject matter expertise can be ensured through using ADR and
viewing the courts really as a guardian of the process by which the parties
resolve things.

To the best of my knowledge built in arbitration and dispute resolution
clauses is not yet the norm at the RIRs although ARIN have included same in
their service agreement:
https://www.arin.net/about/corporate/agreements/rsa.pdf
both in the termination clause (13) and as a general clause (14(k)).
There are some North America specific facets to this and I wouldn't suggest
liting the practice.from same. For one thing we really shouldn't be
visiting Miami to sort things out. I'd prefer to avoid alligators and meth
heads.

In the context of Africa and Afrinic there is the MAIC (https://miac.mu/)
which is in Mauritius and the AAFA could be approached for assistance in
getting something suitable. Ideally the RSA needs to be reviewed and
corrected to address this but a good first start would be evidence of
Afrinic profferring to the various litigants it is fending off to enter
into dispute resolution.

If a meeting - as I believe must be called - is called to elect someone to
fill the vacancy, then I am strongly of the view that a resolution binding
the board to dispute resolution through MAIC and rendering board members
personally liable for any costs incurred by the board as a result of
failing to resolve the disputes in good faith is called for.

Paul
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