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

Fri Jun 30 10:56:55 UTC 2017

Dear Afrinic-Legal Adviser, 

There have been comments posted by the proposal authors in response to yours. 

Kindly go through and provide feedback to the group for any relevant discussion so we may bring the last call period to a close. 

Thank you. 
PDWG Co-Chairs. 

From: "Arnaud AMELINA" <amelnaud at gmail.com> 
To: "Ashok Radhakissoon" <ashok at afrinic.net> 
Cc: "rpd" <rpd at afrinic.net> 
Sent: Friday, June 23, 2017 5:33:07 PM 
Subject: Re: [rpd] Last Call for "AFPUB-2016-GEN-001-DRAFT-04 - Internet Number Resources Review by AFRINIC" 

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

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

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and the second was for the amended versions thereof. 

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

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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. 

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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. 

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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. 

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

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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. 

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

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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. 

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

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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. 

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See below 

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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). 

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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). 

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

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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. 

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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. 

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RSA does not require sworn affidavit to provide information to staff 

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

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this is addressed above 

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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. 

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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 | 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 

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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. 

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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 

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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. 

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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 

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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. 

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Hope the above clarify things and address your concerns 

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

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Warm Regards 

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

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