[rpd] PDP-BIS Follow-up

[Owen DeLong]

> On Apr 20, 2018, at 09:02 , ALAIN AINA <aalain at trstech.net> wrote:
> 
> hello,
> 
>> On 12 Apr 2018, at 22:32, S Moonesamy <sm+afrinic at elandsys.com> wrote:
>> 
>> Hi Arnaud,
>> At 01:16 PM 12-04-2018, Arnaud AMELINA wrote:
>>> Of which sort?  Who knows those people who are  behind policy proposals and not listed as co-authors ?
>> 
>> Please see Section 4.2 of the Terms of Reference of the Appeal Committee.  One example of what could be viewed as conflict of interest is affiliation.
> 
> 
> I thought we agreed long ago, participation in PDPWG is by individuals and affiliation does not matter.

IMHO…

Participation is by individuals and affiliation does not carry weight in the PDP. So, for example, if someone steps up to the microphone and states “I’m John Doe, Scientists for a More Social Internet”, then his affiliation is simply contextual information. However, if he goes on to say “We are a consortium of more than 500 academic and research institutions representing more than 20,000 scientists in the region and our position is…”, we have a problem. The co-chairs should remind him that he is speaking with one voice (his own) and we are counting his thoughts as the thoughts of an individual.

The point of the affiliation proscription in the PDP is to avoid the idea of organizational representation somehow carrying greater weight than individual opinion. This does not mean that information about affiliations is irrelevant. It is quite relevant as a contextual clue for the remarks made and also to help avoid undisclosed conflicts of interest.

>> Over the years there hasn't be a case where the Board has rejected a proposal which was sent for ratification.
> 
> So let not worry too much about this.

Actually, this is an area where I think we should achieve greater clarity for the community and the board.

IMHO, the board has a duty to ratify any proposal which is sent to it with two exceptions:

1.	The board finds that the PDP process or the declaration of consensus was materially flawed
	and wishes to remand the proposal to the community for further clarity of the community’s
	support for same.

2.	The board in its fiduciary role feels that the proposal would be harmful to the organization
	in which case the board has a duty to remand the proposal to the community with specific
	advice on the problematic areas of the proposal and the risks to the organization.

>> Please see the comments from the Legal Counsel.  One of the comments is: "the Board is bound by other legal instruments such as the Companies’ Act and other relevant laws of the Republic of Mauritius. If a proposal would place the directors in contravention of the duties which they owe to the Company, then ratification could be withheld as a matter of law, notwithstanding the PDP. The Board cannot be bound, therefore - for the ratification process, only to the PDP”.
> 
> If the PDP is well followed, there should not be any left out point which may put the BoD in contravention of fudiciary  duties.

ROFLMAO — You really believe this? You are mistaken.

There are hundreds of different ways the community could develop and (potentially) come to consensus around policy which might put AfriNIC in violation of MU law and/or violate the fiduciary duty of the board to care for the organization. These could be policies which carry untenable legal risk to the company, financial risk, or other forms of unacceptable risk. Ashok has a well founded concern here and as the corporate counsel, I believe we should heed his advice on such a matter. I do not believe he would express such a concern without foundation for it.

Remember, rough consensus only calls for all issues raised to be addressed and general acceptance by the community. It doesn’t mean all issues have to be resolved.

> 3.5.1.2(g) imposes  an impact analysis  about all policy proposals which covers aspects board must be interested in as well.
> 
> ………..
> 3.5.1.2 The Discussion Phase
> 3.5.1.2(g) The PDWG Chair shall request the AFRINIC CEO to conduct and publish an impact analysis about the proposal before it can be moved to the Review Phase. The goal of this analysis is to provide relevant supporting information to facilitate the discussions about the proposal and provide some projections about the possible impact if it were to be accepted. This analysis will contain the following points:
> 	•
> 		• AFRINIC understanding of the proposed policy
> 		• Impact on the registry and Internet Number Resources
> 		• Impact on AFRINIC operations/services
> 		• Legal impact
> ………..
> 
> Unless we want to give the BoD a  “veto” right  on the  PDP,  making sure the process was followed should be more than enough.

They do need a veto right based on fiduciary duties. They don’t need a veto right without fiduciary justification.

> In all cases, if board rejects ratification of a proposal submitted, section 3.6  says what to expect:
> 
> …………...
> 3.6  Policy Ratification
> 
> In case of a rejection, the AFRINIC board of directors must justify and publish the reason on the resources policy discussion list ( rpd at afrinic.net) and on the AFRINIC website, and ask the working group to rectify the issue.
> 
> ……….

This seems perfectly reasonable.

>>> The whole section of PDP variance by board is to reflect section 11.4 and section 11.5 of the bylaws
>>> Do we have a conflict?
>> 
>> Section 11.5 (ii) has the following: "In the event that such a policy submitted by the Board is not endorsed, the said policy shall not be enforced or implemented following its  non-endorsement; ..."  The current text has "will endorse …"
> 
> Ok. We will make this section clearer as referral to 11.5 of the bylaws  for the endorsement seems not sufficient.

I would also suggest that the text probably should read “submitted to the Board” rather than “submitted by the Board”.

Owen