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

[Arnaud AMELINA]

Dear Ashok,

Thank you very much for your responses.

1. We are still in agreement that the review can be done by AFRINIC through
a policy proposal as you stated all time.


2. According to your own legal assessment, there seems to be some risks
associated to the review as mandated by this version of the policy proposal.


3. You agree that these risks can be managed

And your response states:

- There is no problem with 13.3.2 (Selected scenario)

- There is no problem with 13.3.3.a (reported scenario: members asked to be
reviewed)

You also said nothing about about 13.3.1(Random scenario) and we therefore
assume you are fine with that too.

Your concern lies with 13.3.3.b ( Reported Scenario): community complaint
made against a member that warrants investigation.

A. Your main concern is about the reliability, admissibility and
authenticity of the evidences to be provided by the third party to AFRINIC
while reporting a ressource and you said:

====
“ I shall never advise AFRINIC to embark upon an exercise where it will
have to shoulder an obligation to test the reliability, admissibility and
authenticity of such facts/data/information submitted by a third party.”
======

Yes, it is the responsibility of the source of complaint to provide enough
information to convince Afrinic to engage in the evaluation of the
evidence/facts and a subsequent investigation if required.  As such there
is no need for a legal document.  If supporting legal documents are
required by Afrinic or provided by the source, this must be done through
the appropriate mechanism which the legal counsel shall indicate to AFRINIC.

The current version of the 13.3.3.b is PDPWG consensual version introduced
since version 3.0. Authors would not object to reverting to the original
version of the text which says:

======
c) Reported:
The members have requested the audit themselves or there has been a
community complaint made against them that requires investigation.
======

B. Your other concern is about the appeal process, and you said :

=====
“Whether you segregate the appeals as against (i) the result of the review
or (ii) actions taken by AFRINIC based on the result of the review, in both
cases AFRINIC is a party thereto. It cannot, consequently, put up a
mechanism to have its own action reviewed. It simply does not make sense.

This is why since the beginning, we made a reference to the "Mauritius Code
of Civil Procedure" where the process for arbitration is already provided
for."
======

The focus in this policy proposal is on appeal process for the result of a
review. The appeal for action taken based on result of review clearly fall
under the Mauritius code of civil procedure as the RSA is governed by the
Mauritius laws and the RSA has no other arbitration mechanism.

The RSA has all the provisions for indemnification, liabilities, etc and
the community trust the organization supported by its legal counsel to do
the right things and stand to defend it everywhere.

As this proposal is describing how AFRINIC shall conduct the review
mandated by the RSA and policies, it is proposed (by AFRINIC community)
that in case of disagreement on the result of review done by AFRINIC Ltd
(which are mostly based on compliance to policies), a reviewed member is
given a chance (not mandatory) to challenge the review results before an
appeal panel of knowledgeable volunteers from the community. The Panel
conclusion on the result of the review is final, but does not prevent the
appeal against action taken by AFRINIC.


Hope this Helps

—Arnauld (on behalf of the authors)

Le 10 juil. 2017 11:08, "Ashok Radhakissoon" <ashok at afrinic.net> a écrit :

> Dear All,
> Find for your consideration my final assessment of the proposed policy
> under reference.
> Regards
> Ashok.B.Radhakissoon
> Legal Adviser
> AFRINIC
>
> _______________________________________________
> RPD mailing list
> RPD at afrinic.net
> https://lists.afrinic.net/mailman/listinfo/rpd
>
>
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