[Community-Discuss] Binding Arbitration

[Andrew Alston]

My issue here is – I am not convinced that you can use arbitration to step around the law.

When the companies act has rules – you cannot use arbitration to violate the companies act.
When the bylaws create rules – and the company violates those rules – arbitration to allow them to violate the rules – also doesn’t make sense – because it creates a situation where they can violate the rules for one company based on arbitration outcomes and then leave themselves to sitting in arbitration for everyone else.

Arbitration works when it’s a dispute involving something specific to an entity – it does not work when one of the entities is violating the companies act or the bylaws that affect all members.

As for the question that was asked about if AfriNIC has ever initiated proceedings – no – not that I know of – but – what they have done is created the situations where members have felt no option but to take legal action.  Members have a duty to protect themselves – and when AfriNIC’s actions represent a threat to the interests of those members, and potentially in conflict with the law or the bylaws – and AfriNIC point blank refuses to budge – then they create an adversarial and litigious environment.

A classic example of this is the AGMM tomorrow – There are formal objections to the AGMM – the companies act says one thing, the bylaws say something, and AfriNIC has a very simple option.  Postpone the meeting, issue a rectified notice of meeting, and issue the resolutions in that notice of meeting that are required to be there.  The meeting could then be held as an online only meeting in 4 to 6 weeks – and there would be no objections anymore – and all it would require is a slight delay that would not in reality hurt anything.  Instead – AfriNIC seems hell bent on pushing through and performing some truly amazing legal gymnastics to make text say things it doesn’t – and thereby escalating an already tense situation rather than choosing to act in the best interests of the company and the members, avoid potential litigation and just accept the delay.  Why are they choosing this route?  No one really knows – because it certainly would not actually affect anything in a material sense if they were to rectify the issues at hand – but it seems that egos are winning out.

I also point out that it was AfriNIC’s legal council – who on video – in front of an AGMM in Uganda – said to the members “If you don’t like it – you have an option, the courts” – effectively he said “Don’t like it – sue us” – well – members are now obliging – what did they expect?

Andrew


From: Paul Hjul <hjul.paul at gmail.com>
Sent: Thursday, June 2, 2022 1:07 PM
To: community-discuss at afrinic.net
Subject: [Community-Discuss] Binding Arbitration


"Has anyone considered binding arbitration as a means to resolve these various

controversies?  It seems to me that that might be a more cost efficient,

and almost certainly a more time-efficient manner of resolving a number of

outstanding disputes that various parties have with AFRINIC at present.



Andrew is right, of course, to lament the high costs of traditional legal actions.

But in which instances has AFRINIC initiated those costly legal actions?"



Um I've argued for Afrinic to commit to arbitration since the inception of the issues. Not sure when you joined team ADR.

Complaining that you are being sued after you committed a tort is a bit rich. You are sounding like the whining American executives who are unhappy that Ford was slapped with an injunction in Germany after they refused to enter into FRAND licensing negotiations knowing full well that refusing to do so represents intending to infringe on patents.

The party who acts wrongfully and who fails to remedy is responsible for the litigation that follows.

Afrinic's board knowingly, maliciously and for an alterior motive moved to cancel a members membership. They did so without following any of the rules of natural justice.

That is the inescapable and dispositive fact of this fiasco. The existence in the RSA of a dispute resolution clause is the best way to guard the organization moving forward and its absence means that even if the board were to grow up and stop delinquency they wouldn't be able to ensure that every dispute is now in arbitration. But that is hardly a reason not to do things correctly moving forward. Of course much of the litigation would become moot if the board would simply acknowledge the patently unlawful conduct it engaged in.
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