[Community-Discuss] [members-discuss] Afrinic Court Updates

Paul Hjul hjul.paul at gmail.com
Mon Nov 29 12:59:49 UTC 2021

I think you are misreading the Mauritius Companies Act and without
realizing it you've actually agreed with me

The text of section 354:
  354. Arbitration (1) A company may, by writing under the hand of the
director where the company has one director or where the company has 2 or
more directors, under the hands of at least 2 directors, agree to refer and
may refer, to arbitration, in accordance with the Code of Civil Procedure,
any existing or future dispute between itself and any other company or
person. (2) Every company which is party to an arbitration may delegate to
the arbitrator power to settle any term or to determine any matter capable
of being lawfully  settled or determined by the company itself or by its
directors or other governing body.

The Company - that is AfriNIC has the power to bind itself to arbitration.
There is no power afforded to somebody who has a dispute with the Company
to invoke... There is nothing to invoke by an applicant. At most somebody
who is going to take AfriNIC to court could do is have their attorneys in
writting propose referal but with AfriNIC already have declared that
members must take it to court that is a fools erand. Until the Board issues
a statement that it will refer matters to arbitration the profer from a
plaintiff is a waste of their breath. As I've repeatedly said the Board can
agree to refer the disputes which are bogging the organization down to
arbitration if any of the counterparties refuse to agree then litigate out
those cases but you've got fewer cases already. If you are reading in that
section 354 must be or can be invoked by a party other than the Company
itself then you are misreading the statute.

I also think your appeal to ICP-2 is misplaced for one very simple reason:
"All organisations that receive service from the new RIR must be treated
equally. The policies and guidelines proposed and implemented by the RIR
need to ensure fair distribution of resources, and impartial treatment of
the members/requestors.
The new RIR should be established as an independent, not-for-profit and
open membership association."

The fundamental problem with AfriNIC right now is that the appearance of
bias against certain resource members is impossible to refute until the
Board repudiates same malice against certain members and is seen to adhere
to the principles of natural justice there is a problem.

Further the entire discourse of ICP-2 is against fragmentation which is
exactly what the refusal to have an inter-RIR transfer practice
accomplishes. There is a faction within AfriNIC that is at odds with the
global nature of the Internet and who are the perpetual cause of problems
in Africa. This merry band have found their scapegoat and are trying to
keep a distraction going.

I fear that unfortunately ICP-2 had lofty goals set forth that needed to be
complied with in order to see the establishment of AfriNIC and that while
lip service and checklist compliance was met many of the criteria around
cohesive community support were plastered in. It is certainly a tall order
for anybody to try to get a region of Africa to become its own RIR but I
don't actually know how ICANN will respond to a dissolution of an
organization which serves as the RIR following activity that was in
conflict with the intent of ICP-2. You also appear to be harbouring the
belief that I want Afrinic dissolved, I don't I want it fixed and fixed
enough that it just works and I don't have to care about it.

On Mon, 29 Nov 2021 at 14:10, <arnaud.amelina at togorer.tg> wrote:

> Hi Paul,
>  From all I’ve read so far, the plaintiff never invoked section 354 of
> the company act to refer the dispute to arbitration and AFRINIC did not
> object to it. AFRINIC was instead dragged into court and forced to
> resist.
> Acting in good faith, if you want to wind down AFRINIC Ltd and get
> another organization to take over, why don't you engage the membership
> and convince them to put the company into liquidation as per Bylaws
> provisions?
> But before you get there you must first convince the AFRINIC community
> and the global Internet community since AFRINIC was formed by Community
> consensus through ICP-2 to become a regional RIR.
> These countless courts attacks serve different motives from the actors
> which are clearly and publicly known.
> --
> Arnaud
> On 2021-11-26 15:58, Paul Hjul wrote:
> > I am pretty sure all SA based members respect the rights of all other
> > members. At least I hope that is the case. It's not clear to me though
> > whether any actual member - with the person posting on behalf of the
> > organization that is a member - are actually advocating that Afrinic's
> > board continue with a course of disrespecting the rights of members. I
> > say this because for all the noise and bullshit that has come out
> > today - the whole idea of the Afrinic by-laws over-riding Mauritius
> > law was jarring to say the least - nobody has stepped forward and said
> > On behalf of member X it is proposed that the Board infringe on the
> > rights of members.
> >
> > Individuals who could well be speaking in their personal capacity and
> > who have a history of tribalist utterances in this community should
> > not be equated with anything other than dirty tricks.
> >
> > To test my belief that South African instiutions are not aligned with
> > Afrinic behaving in this manner I'll be seeking to put it on ZADNAs
> > SGM meeting next week's agenda. Unlike Afrinic ZADNA does actually
> > have a statutory endorsed position and of course its membership has a
> > big overlap to Afrinic resource members in South Africa.
> >
> > There is no reason why Afrinic doesn't get the principal litigation
> > expedited or handled by arbitration, if that litigation goes the way
> > of the plaintiff then either stop with this nonsense of trying to
> > infringe on their rights as found by the courts or accept that
> > dissolution is inevitable and work towards identifying a successor to
> > perform the vital roles at issue.
> >
> > From: Alan Levin <alan at vanilla.co.za>
> > Sent: Friday, 26 November 2021 13:55
> > To: Ben Roberts <Ben.Roberts at liquid.tech>
> > Cc: AfriNIC Discuss <members-discuss at afrinic.net>
> > Subject: Re: [members-discuss] Afrinic Court Updates
> >
> > Hi,
> >
> > We would definitely support Ben and Liquid on this, I suspect most of
> > the SA ISPs will be respecting the rights of all members. You
> > definitely can't boot Liquid if they sue you!
> >
> > Alan
> >
> > On Fri, Nov 26, 2021 at 10:48 AM Ben Roberts via Members-Discuss
> > <members-discuss at afrinic.net<mailto:members-discuss at afrinic.net>>
> > wrote:
> > Noah,
> > Thanks for this idea.  I would not support it however since it might
> > compromise the rights of members in case of any arising current or
> > future dispute that any member has against AFRINIC..
> >
> > It is best that Afrinic and the member have their arguments in a court
> > of law.  I am no legal expert but I would imagine that the primary
> > case should be treated as priority.
> >
> > Kind Regards,
> >
> > Ben
> > _______________________________________________
> > Members-Discuss mailing list
> > Members-Discuss at afrinic.net
> > https://lists.afrinic.net/mailman/listinfo/members-discuss
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