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

[Ashok Radhakissoon]

To the Attention of the  Co -Chairs-PDWG

I refer to the proposed" Internet Number Resources Review" policy and 
specifically to my observations thereon from a legal perspective.*( 
attached here)*
Indeed I made two assessments. The first was for the first version of 
the said proposal and  the second was for the amended  versions thereof.
Whilst my first observation rested on the contractual  aspect of the RSA 
and the contractual obligation of members to comply thereto-*See clause 
4 of the RSA. *My second assessment was made from the perspective of the 
implementation of the proposal.
As these assessments were submitted by AFRINIC to the authors in good 
time before the face to face discussion thereon, I expected that they 
were to be considered as a fourth version of the proposal was presented.
To all intents and purposes, it is my humble opinion that the legal 
issues were not addressed by the authors nor did you draw attention to 
them during the face to face meeting.
I believed that since the assessments were part of the record for the 
purposes of discussions and consideration, I did not draw the attention 
of the working group to them.
I am now doing so.
  I reiterate that the proposal, as submitted and later amended, would 
expose AFRINIC to potential legal suits if the following issues which I 
have raised in my assessment are not addressed.
1- The testing of data/facts/ evidence submitted( by third parties) to 
staff require the latter to verifythe 
veracity/admissibility/authenticity thereof.If AFRINIC was to act on 
these, and they later reveal themselves to be 
forged/untrue/inadmissible/, AFRINIC may potentially face civil suits at 
the behest of members from whom resources would have been recovered and 
which could have been prejudicial to them(members). I also referred to 
the problem of multi-jurisdictional sources of evidence/facts etc
2- The authors must pronounce themselves on whether members should have 
recourse to sworn affidavits or go through the services of a 
commissioner of oath or propose any other modus to enable the staff of 
AFRINIC to undertake the testing exercise *on the basis of reliable 
evidence,* before embarking upon a review process.
3-My remarks would apply for the two "classes" of review- complaints 
from community- AFRINIC's own decision-
4- I have also not seen the stand of the authors regarding the fact as 
to the "arbiration award" being unequivocal and my observation related 
to an incompatibility with the Code of Civil Procedure of Mauritius.
5- I also raised the issue of " hearing" the investigated party*( a 
requirement of the rules of natural justice)* and expressly stated that 
the proposal does not provide anything in this regard.
6-The question of choice of jurisdiction  wherein the arbitration be 
held-Would it always be Mauritius ? This is the law that applies to the RSA.
In the light of the above ,may I request the Co-Chairs to consider same 
and consequently decide, whether further discussions are required on 
this proposal.
I thank you for you kind consideration.
Ashok.B.Radhakissoon
Afrinic-Legal Adviser.



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