[rpd] PDP-BIS Follow-up

[Owen DeLong]

>>>> 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.
> 
> This is what we are trying to achieve

Isn’t that rather at odds with your previous “So let not worry too much about this” statement on the topic?

>> 
>> 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.
> 
> OK. Noted, we will make this more specific  by adding the second point
>> 
>>>> 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.
> 
> Founded staff and legal comments are  stopper  and have always been been addressed to staff and legal satisfaction. 

It is not guaranteed that they are a stopper. Yes, the history is that they have always been addressed to that level of satisfaction, but since this is not mandatory and it is possible for the community to come to consensus or at least rough
consensus even on a policy where they have not been addressed to that level, the board must have the power needed to fulfill it’s fiduciary role.

> This proposal enforces this by making  staff and legal analysis  mandatory. They are currently “optional”, but have become common practice recently. 

Making the analysis mandatory does not make compliance with the analysis mandatory, nor, IMHO, should the PDP do so.

> The action point above shall close this point.

You do not get to unilaterally decide what will close a point of discussion on a policy, but nice try.

>>> 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.
> 
> All the provisions are intended to make sure  they allow apply the “veto” based on cleared and justified fiduciary duties. 

That’s fine, but your previous statement was ``unless we want to give the BoD a “veto” right’’.

As you have already noted above, point 2 was needed and therefore making sure the process was followed (point 1 above) is not adequate by itself.

>>> 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”.
> 
> Actually the text is from the bylaws referring to policy adopted by board “as variance of the PDP” and which is submitted  by board to the working group for discussions and endorsement at the following PPM.

Ah… I missed the context shift in replying to that point. Sorry about that. Yes, my misunderstanding.

Owen