[rpd] Implementation of transfer policy AFPUB-2016-V4-003

[Noah]

On 24 Aug 2017 3:40 p.m., "Alan Barrett" <alan.barrett at afrinic.net> wrote:

Hi Noah,

I am not a lawyer, and this message has not been checked by AFRINIC’s legal
adviser.  It’s my understanding of the situation.


Hi Alan,

We should  get the Legal Counsel to also look at the matter and advise. Too
sensitive.



The RSA has a clause that says "this agreement shall at all times be
subjected to policies adopted and to be adopted by the AFRINIC Internet
Community”.  “This agreement” means the agreement between AFRINIC and the
member who signs the RSA.  The member is bound by the RSA that they signed,
and the RSA says that the member is also subjected to the policies, so the
end result is that the member must simultaneously follow both the RSA and
the policies.



RSA is the contractual agreement which introduce and enforce  policies and
has clearly solved cases of conflict between itself and policies.
What I  am trying to say is that we have to be mindful of the fact that the
policies supersede the RSA which depends on them and as much as we members
are subjected to the RSA, policies reign supreme.



The RSA also has a clause that says "except in the event of The Applicant
becoming the subject of merger and/or acquisition proceedings, the transfer
of number resources is strictly prohibited”.   Even if there’s a policy
that allows transfers, the RSA prohibits transfers, and the member has
agreed to follow the RSA, so the member may not make a transfer.


This is not valid if the RSA is subject to policies.   If policies say
member can transfer, then policy overrides any provisions of the  RSA with
regards to this aspect.



The RSA was written at a time when transfers were prohibited, and policies
to allow transfers had not even been thought of.  It’s now necessary to
change the RSA to allow transfers, provided the transfers are done in
accordance with policy.


Transfer was not an option and was explicitly prohibited by the RSA to
avoid interpretation and dispute and the RSA anticipates future changes
while  being subject to policies.

In fact, how is this different from the current situation?

1. RSA set default rules ( prohibits transfers) and bind members to policies
2. Members sign RSA
3. RSA states Policies supremacy
4. Policy allows  certain transfer (intra region only) and states rules and
conditions

We must avoid creating loopholes by allowing transfer by default.  Opens
room for abuses, interpretations and legal disputes by people willing to
move resources in the absence  of policies.


> If I may, what is the final objective of this exercise?
>
> 1. To make the RSA more superior over the policies?
> 2. To make policies comply to the RSA and keep changing RSA before
adopting policies?


The answer is neither 1 nor 2.  The objective is not (1), because members
already need to comply with both the RSA and the policies.  (Today, the
only way they can comply with both is by never making a transfer.)  The
objective is not (2), because changing the RSA before adopting policies
would be an unreasonable amount of work.  The objective is to remove a
problem in the RSA, and to do so in such a way that future changes in the
policies around transfers should not need even more changes to the RSA.


Can we point out this specific problems so that its clearer, before we work
on a fix. Lets look at the Pros and Cons of each scenario and mainly avoid
bringing new unnecessary risks .

Cheers,
Noah
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