[rpd] AFPUB-2016-GEN-001-DRAFT-04 - Internet Number Resources Review by AFRINIC

[ALAIN AINA]

Hello,

Allow me to contribute to this… inline… 

> On 13 Jun 2017, at 17:32, sm+afrinic at elandsys.com wrote:
> 
> Hi Arnaud,
> At 08:03 13-06-2017, Arnaud AMELINA wrote:
>> Is the above statement  necessary all times ?
> 
> I mentioned that as there may be a conflict of interest in this case.

How does board member position create a Conflict of Interest  for policy discussions?  In this case, how does AFRINIC BoD Conflict of Interest Policy( if there is any) address this?

> 
>> Humm! already answered in the Staff coments response. see : [1]
> 
> Thanks for pointing me to the previous reply.
> 
>> According to the legal counsel of Afrinic Ltd the above is in contradiction with Articles 1027 to 1027-9 of the Code de Procedure Civile of Mauritius.  Was that issue addressed by the authors of AFPUB-2016-GEN-001-DRAFT-04?
>> 
>> -----------------
>> Already answered too, in the staff coments response. see : [1]
> 
> From what I understand the authors submitted AFPUB-2016-GEN-001-DRAFT-04 on 11 April and there were legal comments after that as the assessment was published on 26 April.

Correct

>  The authors addressed that comment by referring to Article 1027-1 of the Code de Procedure Civile of Mauritius and Section 13(c) of the RSA.

Correct

>  If this becomes a legal issue, I could be asked whether I paid attention to the advice given by the legal counsel of the company.  I will have to ask for another legal analysis unless there is a confirmation from a legal advisor that there isn't any contradiction with the Articles.


A second reading from the legal counsel or an advice from a different legal counsel? We shall all be happy to hear from they say.


There have been lots of confusions and misunderstandings about  the "Appeal Procedure" as proposed by the document. 

What are the facts again ?

Section 13.5 of the proposal says :

+++

13.5 Appeal procedure

The review shall be conducted in full transparency and neutrality.

Reviewed members who are not satisfied have the right to appeal against the result. 

Appeals shall follow an arbitration process as defined by AFRINIC, which shall publish the process and the pool of arbitrators whom shall be knowledgeable volunteers from the community.  The outcome of the arbitration process is unequivocal.

+++

This generated the following  legal counsel analysis among others(1) :

+++
5. Section 13.5 of the proposal states: “the outcome of the arbitration process is unequivocal”. This is in contradiction of, Articles 1027 to 1027-9 of the Code de Procedure Civile of Mauritius which provides that a party to an arbitration may seek the “annulation “of an award by seizing the Supreme Court.
+++


and calls for the following clarifications:

-  There is  too much focus on the word “arbitration”. 

-  The "arbitration” procedure for appeals to be defined  by AFRINIC here is about the result of the review and not the actions  which may be taken by AFRINIC based on the results of the review.

- Number Resource Dispute Resolution which may occurred  through actions taken by AFRINIC following a review or any other procedures  are not covered by this appeal process and shall follow the dispute resolution shown at this URL. (2)

So let's not focus too much on arbitration and Code de procedure Civile of Mauritius  for this appeal procedure, even though the authors have clearly  responded  to the concern expressed  about arbitration through  article 1027-1 of the same code.


> 
>> "Knowledgeable Volunteers" are  individual from the community "well informed " on the subject of the arbitration.
> 
> Ok.
> 
>> "community" should not need clarification. It refers  to "Internet community" as defined by the bylaws as " Any person or corporate body living or operating in AFRINIC service region and interested in the Internet Number resource Management."
>> 
>> BTW: I noticed there is no definition of "community" in the PDP[2] too.
> 
> The volunteers will deciding about arbitration, i.e. something mentioned in the Code de Procedure Civile of Mauritius, and there may be legal implications.  The difference between the PDP and the definition mentioned above is that the PDP leaves it open instead of restricting volunteers to "person or corporate body living or operating in this service region.  

I am on the other side on this.  
Absence of definition of “community” in the PDP means, bound by the definition in the bylaws.  And if PDP were to define “community, it can’t contradict bylaws.

Hope this helps

(1) https://www.afrinic.net/en/community/policy-development/policy-proposals/2087-staff-assessment-for-afpub-2016-gen-001-draft-04-internet-number-resources-review-by-afrinic
(2) https://www.nro.net/about-the-nro/rir-governance-matrix/#disputes

—Alain



> I am okay with the choice which the working group considers appropriate.
> 
> Regards,
> S. Moonesamy
> 
> 
> _______________________________________________
> RPD mailing list
> RPD at afrinic.net
> https://lists.afrinic.net/mailman/listinfo/rpd