[AfriNIC-rpd] NomCom at AFRINIC-16

[Owen DeLong]

On May 23, 2012, at 8:14 AM, Jackson Muthili wrote:

> On Wed, May 23, 2012 at 5:49 PM, gift <gift at itibots.com> wrote:
>> Whilst we wait for the learned, I believe  the bylaws can be made to be
>> technology neutral and flexible without violating the Act, as long as
>> members agree. Also as far as I can see the Companies Act of Mauritius is
>> fairly standard and similar to most other jurisdictions in particular with
>> reference to the issues under discussion here. So we must not believe we are
>> facing a country challenge but rather a general legal compliance issue which
>> can be handled. As currently worded and if applied to the letter they are
>> restrictive in areas e.g 10.33 and 10.36. seems to be anti-e. Amendments can
>> always be made I guess. To help this discussion I copy below the relevant
>> section from bylaws:
>> 
>> Proxies
>> 
>> 10.31 A Member may exercise the right to vote either by being present in
>> person or by proxy.
>> 
>> 10.32 A proxy for a Member may attend and be heard at a General Meeting as
>> if the proxy were the Member.
>> 
>> 10.33 A proxy shall be appointed by notice in writing signed by the Member
>> and the notice shall state whether the appointment is for a particular
>> General Meeting or a specified term.
> 
> It appear this eliminate option for electronic proxy!!
> 

That depends on whether or not MU has adopted laws similar to those in many states in the US.

In California, for example:

http://danfingerman.com/law/statutes/Cal_UETA.html

Specifically:


§ 1633.7.
A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
If a law requires a record to be in writing, an electronic record satisfies the law.
If a law requires a signature, an electronic signature satisfies the law.
> Are we stuck with paper proxy?
> 

Not sure. Again, this depends on how MU law treats electronic signatures. It is possible, for example, for such law to designate that electronic signatures are in all ways legally satisfactory to any requirement for a document in a persons own hand. I suspect that such a law may not yet exist in MU and/or may never exist in MU, but, I simply do not know. However, the act above by itself is not sufficient to make such a determination.

>> 10.34 No proxy shall be effective in relation to a General Meeting unless a
>> copy of the notice of appointment is produced before the start of the
>> General Meeting. Any power of attorney or other authority under which the
>> proxy is signed or a notarially certified copy shall also be produced.
>> 
>> 10.35 A proxy form shall be sent with each notice sent to a Member.
>> 
>> 10.36 The instrument appointing a proxy shall be in writing under the hand
>> of the appointer or of his agent duly authorised in writing or in the case
>> of a corporation under the hand of an officer or of an agent duly
>> authorised.
> 
> Also this one. All proxy to be manually hand written.
> 

Given the form and the fact that the same law requires each notice to include a "proxy form", I suspect that, at most, the areas of the form below shown as blanks would be required to be in the hand of the person issuing the proxy in order to qualify. A more liberal interpretation of the law could, in fact, even accept that only the signature and date need be in the issuers own hand. I am not sure which interpretation applies, but, it seems to me that 10.35 provide clear contextual limitation to the amount of the instrument which must be hand written.

>> 10.37 The instrument appointing a proxy shall be in such form as may be
>> determined by the Board from time to time or, in default of such
>> determination, in the following form -
>> 
>> I/we ................................. of .................. being members
>> of the above named company hereby appoint ..................………………… or
>> failing him/her, ........………….......... of ...........................……..
>> as my/our proxy to vote for me/us at the meeting of the company to be held
>> on ....................... and at any adjournment of the meeting.
>> Signed this ................ day of ...........................……….
>> 
>> 
>> 

Proxies, per se, are not the problem, but, the implementation of proxies as it currently stands is certainly the source of significant concern.

A tight well regulated consistent and well documented process is necessary regardless of the election system used. In designing such a system, one should consider transparency, openness, and fairness as primary goals. Any provision which incentivizes candidates to take actions out of the view of the community is contrary to those goals, IMHO.

Owen

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