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

[Noah]

+1 Arnaud for the detailed response to legal.

Cheers,
Noah

On 12 Jul 2017 9:30 p.m., "Arnaud AMELINA" <amelnaud at gmail.com> wrote:

> 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
>>
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>> RPD mailing list
>> RPD at afrinic.net
>> https://lists.afrinic.net/mailman/listinfo/rpd
>>
>>
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