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<p>Dear Mr. Andrew,</p>
<p>The Board recalls a number of questions you did put forward on
July 14th July 2017. One of the issues asked was about the
competition with regards to the operations of Afrinic.</p>
<p>I would like, for the records, to update you and the community as
follows:</p>
<p>1. On same day (14th July 2014) the former Board Chair provided
an acknowledgement of the e-mail and promised a response within 60
days;</p>
<p>2. On 23rd Sept 2017 (10 days after the promised deadline) the
former Board Chair apologised for the failure to meet the deadline
and requested for another 2 weeks.</p>
3. On 3rd October 2017 (about 4 days before the requested new
deadline) the former Board Chair replied with the message that
included the following text:<br>
<br>
Q1. Can the Board please commission an investigation into whether
the lack of a bi-directional transfer policy puts AFRINIC at risk of
running afoul of the Mauritius Companies Act of 2006, and in what
areas, and exactly what the potential liability is?
<br>
<br>
A1:As you know, AFRINIC's ‘Board of Directors’ is bound by Section
143 of the Companies Act "to act in good faith and in the best
interests of the company". In order to do so, the Board is bound by
AFRINIC’s Constitution, policies and best practices of corporate
governance. You, as an ex-board member know that AFRINIC Board of
directors makes effort to keep away from interfering in policy
discussions as a Board, irrespective of whether it is the in-bound
transfer or the bi-directional transfer or any other policy to
preserve the core principle of “bottom-up” process as indicated in
AFRINIC PDP. It is not possible to assess whether there is a risk or
a potential liability under the Mauritian Companies Act 2001 in the
absence of a proposal about bi-directional transfers. Given that the
policies for number resources are determined by the Internet
Community, it is up to the Community to take the initiative to
propose a bi-directional transfer policy if it believes that there
is a need for such a policy.
<br>
<br>
Q2. Can the Board please advise the time frames required to commence
such an investigation, and once said investigation has been
commissioned, advise on the time frames to complete said
investigation, and once concluded advise the community of the full
results of said investigation.<br>
<br>
A2: If you see a potential or real risk on AFRINIC because of the
absence of the bi-directional transfer policy with regards to the
Mauritius Companies Act, let us know in which part or article in the
Mauritian Companies Act you feel such risks may exist for AFRINIC
Ltd. The Board will ask the AFRINIC’s legal counsel to investigate
it and prepare a detailed report about that risk to be published for
the community. Right now, AFRINIC’s legal counsel is of the opinion
that there is no current risk of the absence of such policy, in as
much as the community is not approving such policy for the AFRINIC
region.
<br>
<br>
On same day (3 October 2017), you clarified that you had intended to
ask about the Competition Act and not the Companies Act.
<br>
<br>
On 5th October 2017, the former Chair of the Board responded with a
message that included the following: "The Board will commission an
investigation into the implications of the lack of a bi-directional
inter-RIR transfer policy, with respect to the Competition Act. We
expect the work to start by 20 October 2017 (2 weeks from now). We
do not know how long the investigation will take."<br>
<br>
<br>
Now, I would like to inform you and the whole community that the
Board did indeed begin an investigation as promised. The first step
was to seek advice from AFRINIC’s legal counsel, and subsequently to
seek advice from the Mauritius Competition Commission.
Below are the details:<br>
<br>
On 7th October 2017 (2 weeks prior to the promised start date),
AFRINIC’s legal counsel provided an opinion to the Board that there
is no cause for concern about a potential breach of the Competition
Act.
<br>
On 8th November 2017, AFRINIC’s CEO and Legal Counsel met with the
Executive Director of the Competition Commission of Mauritius, and
two of their head investigators. The Competition Commission
undertook to investigate and report.
<br>
<br>
On 14th December 2017, AFRINIC’s legal counsel was informed that the
Competition Commission had not yet considered our request.
As of March 2018, the Competition Commission has advised that the
case is still being investigated and AFRINIC shall be informed of
any outcome.
<br>
<br>
Having briefed/updated you and the whole community, I believe we all
know know the pace at which most Governments/Government Agencies
operate and therefore the Board is not in a position to promise as
to when the response from the Competition Commission will be
obtained. However, the Board reassures you and the whole community
that it will continue pushing, through reminders, for the response
from the commission.<br>
<br>
If there are any questions you believe the Board has not responded
to, please kindly restate them.<br>
<br>
rgds<br>
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<pre class="moz-signature" cols="72">--
Abibu R. Ntahigiye
CEO, tzNIC / Interim Chair, Afrinic</pre>
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