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

[Noah]

On Thu, Aug 31, 2017 at 12:39 PM, Alan Barrett <alan.barrett at afrinic.net>
wrote:

>
> > On 25 Aug 2017, at 16:02, Noah <noah at neo.co.tz> wrote:
> > We should  get the Legal Counsel to also look at the matter and advise.
> Too sensitive.
>
> The legal adviser has provided advice to me on many occasions.  When I try
> to summarise his advice, I may make mistakes in minor details, but I am not
> making a mistake about the main point: The current RSA prohibits transfers
> (except for mergers and acquisitions), and removing that prohibition will
> require changing the RSA.
>


Remove the prohibitions to transfers to allow only specific transfers which
are "IPv4 Resources transfer *within* the AFRINIC Region".




> > 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 policies express the will of the community.  The RSA is a legal
> agreement.  If the will of the community conflicts with the RSA, then the
> community will expext the RSA to be changed.  That’s what’s about to happen.
>


The changes have to be specific to the will of the community in this case
"IPv4 Resources transfer within the AFRINIC Region" and not generic
transfer or any other transfers.



> >> 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.
>
> “This agreement is subject to policies” means “policies can add additional
> restrictions”; it does not mean that policies can remove restrictions.
>


I am not sure I understood your statement above and disclaimer: 'as much as
am not a lawyer',  and others in the community could advice but "*subject
to*" means... conditional and being dependent upon something... see [1] [2]

Therefore IMHO, RSA is subject to policies and that would mean in this
case, subject to specifically the ratified policies only,  and for this
case the AFPUB-2016-V4-003 "IPv4 Resources transfer within the AFRINIC
Region".

So the modification and wording of the updated RSA, ref: transfers , should
be specific to this policy to avoid creating loopholes using the word
"transfer" as the only tranfers allowed per policy will be
Intra/within/inside Afrinic service region and nothing else.



> > 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
>
> But your point 3 does not apply.  Perhaps it might be useful to say
> something like that in a future version of the RSA, but it’s not in the
> current RSA.
>
>
Why future versions of RSA. If current is being updated to reflect other
changes, then add that there.

Cheers,
Noah

[1] https://definitions.uslegal.com/s/subject-to/

[2] http://thelawdictionary.org/subject-to/
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