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

Fri Jun 23 16:33:07 UTC 2017

Hello Ashok, please find inside lines in red color, authors response to
your concerns :

2017-06-19 1:34 GMT+00:00 Ashok Radhakissoon <ashok at afrinic.net>:

>
>
> 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
>

Your first assessment is very inspiring and can be seen at
https://afrinic.net/community/policy-development/policy-proposals/1947-
internet-number-resources-review-by-afrinic#assessment
It says:

Legal:

    *The RSA is a community approved document and all members are bound by
each and every clause thereof once they sign the agreement. It is a
contract where both parties subscribe to clear obligations.*
*    In application of the law of contract of Mauritius as found in Article
1134 of the Mauritius Civil Code Section 4, the RSA is already binding, as
a result on all members who sign the agreement.*
*    It is perfectly lawful , in terms of the application of the Mauritius
Civil Code , for AFRINIC to act under the said section and reclaim
resources from those members who/which fail an audit/review exercise.*
*    The policy can do no more than allow AFRINIC to do what it is already
doing in a clear and transparent manner on the basis of a community
approved document*

> and  the second was for the amended  versions thereof.
>

It will be good if you could  point out the amendments and how they bring
some potential risks

> 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 there is no legal concerns about adopting a policy to implement
contractual obligations set by the RSA and allocations/assignment policies,
it sounds good to discuss implementation.

> 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.
>

Just for records: version 4 was submitted on April 11, Second staff and
legal assessment  was  published on April 26

> 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.
>

Authors responded to this second  assessment on the mailing list. See
https://lists.afrinic.net/pipermail/rpd/2017/006889.html and spoke about
them in the presentation made during the PPM

> 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.
>

Thank you. We believe this give the working Group and yourself a single
opportunity to progress and close this issues.

>  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.
>

See below

> 1- The testing of data/facts/ evidence submitted( by third parties) to
> staff  require the latter to verify  the 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).
>

You point to Third parties  with  “data/facts/evidence submitted by (third
Parties) to staff.  You are then referring to section 13.3.2(b) below

*13.3.2 Selected*
*A member is selected because of an internal report or due to a lack of
contact between the AFRINIC and the member.*
*13.3.3 Reported: Here, members are reviewed either because:*
* a. They have requested the review themselves or;*
* b. There has been a community complaint made against them that warrants
investigation. Complaints shall be backed by evidence and AFRINIC staff
shall evaluate the facts as appropriate to conduct the review. However,
this review is not applicable to a member with the same resources portfolio
on which a full review has been completed in the preceding 24 months.*

*Staff shall evaluate the facts at their discretion just to know if the
complaint is worth establishing a review. The decision to run a review in
all cases fall under RSA and policies provisions. *

*section 4 (iii) of RSA*

*Further  acknowledges  that  AFRINIC  may  at  its  own  discretion  and
 for  good  cause  and *
*common Interest of the stability of the Internet, investigate or cause to
be investigated, the Applicant’s *
*use of the services by the appropriate and competent authority(ies).*

> I also referred to the problem of multi-jurisdictional sources of
> evidence/facts etc
>

No need for a legal document/evidence as explain above.

But in case this would be needed, one could expect the company legal
counsel to guide the organization as how it works by default.

AFRINIC already deals with evidences/Facts from members and potential
members when evaluating request for allocations and additional allocations.

> 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.
>

RSA does not require sworn affidavit to provide information to staff

> 3-My remarks would apply for the two "classes" of review- complaints from
> community- AFRINIC's own decision-
>

this is addressed above

> 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.
>

There seems to be some confusions and misunderstandings here. Below is
again the text of the appeal procedure:

*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.*

It is about an appeal against the result of the audit. Nothing more.  An
appeal process as we do have for example in the section 3.5 of the CPM.

The Arbitration process to be defined by AFRINIC “must” only cover appeals
against the results of review and not appeal against actions taken by
AFRINIC after a review.

This must be separated from any dispute which may arise from action taken
by AFRINIC as results of a review or other mechanisms which shall follow
the Number Resource Dispute Resolution of AFRINIC as  shown  at this URL.
https://www.nro.net/about-the-nro/rir-governance-matrix/#disputes

*So question is  “ is section 13 of the RSA incompatible with the Code of
Civil procedure of Mauritius” ?.  But this discussion does not fall under
this policy proposal*

> 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.
>

Policies and RSA provide mechanisms for staff to conduct review of
allocation/assignment requests and allocated resources usage. This policy
proposal does not need to define any other mechanisms.
Investigated party must collaborate and provide information required by
AFRINIC.

Afrinic does not conduct hearings with requesting members, so not required

> 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.
>

As stated above, the Arbitration this policy proposal refers to does not
require jurisdiction.

Choice of jurisdiction according to the RSA is Mauritius, and we expect
this to apply to Number Resource Dispute Resolution as defined in 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.
>

Hope the above clarify  things and address your concerns

> I thank you for you kind consideration.
> Ashok.B.Radhakissoon
> Afrinic-Legal Adviser.
>
>
>
Warm Regards

Arnaud A. A. A.
Active Community member ;)

>
>
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>
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