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

Tue Jun 27 13:35:37 UTC 2017

Dear Tutu,

Thank you for your kind words.

We use all our space in compliance to the policies, so there would be
little to worry about, my words are not personal but in general.

Policy making is not for one self, but for the whole community.
If a policy is good, I may even support it if it would go against some of
our benefits, I may have some explaining to do to my boss afterwards,  but
as long as it is of greater benefits for the AFRINIC community, AFRINIC LTD
and the members, I can and will support a policy.

The whole point is that this policy proposal can be harmful.

Allocations rightfully issued and in use should not be de-registered.

IP address that are not in use, ideally should be returned on a voluntary
basis back to AFRINIC.
But please note that this policy will not recover such space, this was even
mentioned in staff comments a few versions ago.

And I say ideally returned, because, due to the scarcity of IPv4, the IPv4
"market" will appear in AFRINIC as well.

Most people selling IP address on the market did not stockpile and hoard IP
Address, they received them for their needs, their needs changed over time,
they don't need them anymore and can either give them back to their
respective RIR (ideally but not realistically) or make a "transfer" out of
them to an organisation that requires more space.

We have a transfer policy, those IP will get recycled that way, there is no
way around that.

Not having a transfer policy would only lead to "undeclared" transfers.

I hope this clarifies my point of view a bit.

Kind regards,
David Hilario

On Jun 27, 2017 9:00 PM, "Tutu Ngcaba" <pan.afrikhan at gmail.com> wrote:

Mr.David Hilario

shall you please clearly state what you are afraid about.

Are you using the ip address given to you by following the agreement of the
RSA?

Why you are afraid of the policy that shall make the ones not using ip
address given to them by the Afrinic and not collmplied per the policy to
return so can be given to some the africa company.

the Afrinic gave you the ip address to use. you did not own it. you applied
they given you to use to make sure internet in africa is develped and
expansion. you paid this membership fees evertime you keep using this ip
address. if you ask to pay for  big ip address use and u did not use but
you will afford to pay the annual membership fees and keep ip address idle
then the Afrinic say, continue to only pay for the ip address you are using
and return the idle so the afrinic can give new members. What is the
problem.

i did not see why you are afraid like this. if the afrinic will be in legal
issue, how if they review and see you did not use. they will win so no
problem. they take the ip address and give somone else to use and they
still will have more member.

some members who are confidence in ip address they request and are using do
not have problem with this policy only the ones afraid and hiding something.

Let the truth set you free brother David Hilario.

Best Regards,
Tutu Ngcaba

On 25 Jun 2017 9:03 p.m., "David Hilario" <d.hilario at laruscloudservice.net>
wrote:

> Hi Arnaud,
>
> AFRINIC Ltd being put in direct danger of legal actions and financial
> claims from its members is still a possibility regardless of how we
> look at the situation, this will continue to be the case for as long
> as the proposal threatens to de-register resources..
>
> This is the reason why an objections were raised, it is even part of
> the reasoning in staff assessment as a very real possibility, I don't
> believe we can simply close our eyes on this one and just act as if it
> isn't there.
>
> RSA is "only" a legal document between a member and AFRINIC LTD, it
> contains some resources related guidelines, but as we have seen with
> the transfer policy it is not above AFRINIC policies.
> The policies are above the RSA when it comes to resource management
> and distribution, RSA gets invalidated by any policy contradicting it,
> as such basing and defending a policy a policy proposal on the content
> of the current RSA may be unwise, the policy needs to stand on its own
> without having to refer to the RSA.
>
>
>
> David Hilario
>
> IP Manager
>
> Larus Cloud Service Limited
>
> p: +852 29888918  m: +359 89 764 1784
> f: +852 29888068
> a: Flat B5, 11/F, TML Tower, No.3 Hoi Shing Road, Tsuen Wan, HKSAR
> w: laruscloudservice.net
> e: d.hilario at laruscloudservice.net
>
>
> On 23 June 2017 at 19:33, Arnaud AMELINA <amelnaud at gmail.com> wrote:
> > 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-prop
> osals/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/authent
> icity
> >> 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 ;)
> >>
> >>
> >>
> >> _______________________________________________
> >> RPD mailing list
> >> RPD at afrinic.net
> >> https://lists.afrinic.net/mailman/listinfo/rpd
> >>
> >
> >
> > _______________________________________________
> > RPD mailing list
> > RPD at afrinic.net
> > https://lists.afrinic.net/mailman/listinfo/rpd
> >
>
> _______________________________________________
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