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[rpd] Comments on AFPUB-2020-GEN-004-DRAFT01 - Board Prerogatives on the PDP

Thu Oct 22 16:03:57 UTC 2020

Hi Noah,

The PDP is responsible for everything regarding the PDP itself and establishment of policies. The PDP is responsible for the WG, the chairs, the appeals, etc.

Section 3.5 of the PDP states that the board will appoint the Appeal Committee, it doesn’t say anything that the board should make a ToR, which is a way to *modify* the PDP, because the actual ToR has contradictory interpretations of the PDP.

The board can SET new policies, if needed, “regarding the management of internet number resources” according to 11.4 of bylaws. The bylaws consciously talk about resources, not the PDP itself. So, the board can’t set a ToR and even less if not needed. In other regions the Appeal Committee doesn’t have a ToR, because it is clear that they just need to follow the PDP and NOT try to re-interpret it.

Further to that, bylaws 11.5 clearly say that if the board adopts any policy, “shall be submitted to the community for endorsement at the next public policy meeting”. So even if we admit that the ToR was part of “regarding the management of internet number resources”, when was presented and reached consensus in a meeting, according to the PDP, the ToR? NEVER!

Remember, our PDP states meeting, having presented the ToR in the list doesn’t constitute “policy proposal”, neither “a presentation in the next public policy meeting”.

Calling it ToR, instead of policy for the AC working methodology (just an example), I’m sure it was not done consciously, but it is against the PDP. The PDP is not board business. They only have the attribution in case of (let’s call it) “force major” to set a policy or suspend a policy, until the community, in the following meeting, approves it by consensus.

This text “Internet number resource policies are distinctly separate from AFRINIC general business practices and procedures. General business practices and procedures are not within the purview of the Policy Development Process” in PDP 3.1, is only stating that the PDP can’t dictate things related to the membership (such as fees, the RSA terms, etc.): all that is up to the members, but is not saying that the bylaws are “over” the community, that will be in contradiction with the bottom-up approach.

The temporary provisions of this proposal (3.6.1.) only say that the ToR will decay, but not the Appeal Committee itself. The ToR are not needed. Again: The AC should just follow what is defined in the PDP to do their job, nothing else. Look at the previous appeal, and we will see also the results of the current ones.

There are lots of details in the ToR which *aren’t in the PDP*. They are make up, without the PDP process consensus process. It is unacceptable.

Regarding ideas, I’d publicly exposed after the previous appeal this matter in the list and asked the board to resolve it. You know the answer? SILENCE. This is unnaceptable. The board (not the actual one) at some point make up a ToR instead of a policy proposal (which anyway, I don’t think is needed). They never followed the bylaws to reach cosensus on it.

In Spain, we will call it even a criminal act. Let me clarify it because when I used this expresion the other time it was missinterpreted. This doesn’t mean they are criminals or anything similar, it is just an expresion of exageration when something is very severe. If you don’t like “spanish omelete” or “spanish ham”, we use the same expresion. I’m sure in english there are equivalent exagerated expresions, but what it matters is that faking the PDP by calling something ToR or procedure when is actually a policy change, is not acceptable, *at all*.




El 21/10/20 23:26, "Noah" <noah at> escribió:

On Wed, Oct 21, 2020 at 1:57 PM JORDI PALET MARTINEZ via RPD <rpd at> wrote:

Hi Noah,

It is very well explained in the proposal and if you read the bylaws you will see that this proposal is not contradicting it, on the other way around.

No Jordi, again I disagree and believe me I have read the company act, the bylaws, the CPM so many times and like I said, your proposal contradicts the bylaws and if I go further it may also raise issues with the company act.

Section 3.1 of the bylaws is very clear as per below bold

3.1 Scope of the PDP
The Policy Development Process covers the development and modification of policies for handling Internet Number Resources within the AFRINIC service region. Changes to the Policy Development Process itself will also follow the process.

Internet number resource policies are distinctly separate from AFRINIC general business practices and procedures. General business practices and procedures are not within the purview of the Policy Development Process.

The bylaws already said that, but the PDP not. So, making them in-sync is the right thing to do.

Again, section 3.1 is very clear that the PDP is distinct and separate from AFRINIC general business practices and procedures bro. This proposal tries to interfere with AFRINIC as a company and by that I mean the board.

Unless I missed something and you can point out exactly where is the contradiction?

Ok let me try... the board appoints the AC. The AC role is to look at the CPM and interpret it. This is not the Board role since the board appoints the AC to do that.

The board operates by the bylaws which are a members constitution which is a requirement as per the company act. So it's fair to say that the board prerogative is from both the bylaws and the bylaws also recommends that the board come to the community in case of any policy issues and the board has been doing this for years.

You can not therefore succumb the directors/board to the CPM because that would be pure encroachment into the powers of the board by the community by also restricting the directors to the CPM contrary to the same CPM section 3.1.

The point here is that it was wrong for the bylaws to state that, it is a PDP matter not a bylaws one. The members (and thus the board) can’t impose anything to the community, that’s against the ICANN ICP-2. What is right is that the members (and the board) bring to the PDP whatever ideas they have, and if the community approves them by bottom-up consensus, then it goes on.

Bro, the ICP-2 recommends that we follow the bottom up process etc but at the regional level, there are other rules whether the members constitution or the company act in Mauritius and believe me, you don't want to start contracting this up by mixing the bylaws, company act and CPM. So this ICP-2 argument is irrelevant because the bottom up consensus you are talking about already exists and works as per the CPM.

I fully support that in extreme situations the board can take decisions, but they should be brought back to the community, this is *exactly* what the bylaws say and the PDP should match that.

No the PDP doesn't have to match that otherwise members will have to change section 3.1 of the bylaws which requires special resolutions bro.

And by the way, you don't want all powers to be given to the co-chairs to determine all the committees etc including the AC.

It's fair to say that we let the executive branch have its powers separate from the legislature and let the courts be independent of both the executive branch and the legislature.

In fact the proposal in simple terms means that when it is to be ratified, as per the proposals section 3.6.1 below, we shall have no more Appeals committee or any other committee for that matter which is very dangerous.

3.6.1 Temporary Provisions

When this policy reaches consensus, any existing relevant Board or Committees processes or policies will automatically decay and can only be re-introduced as a draft policy proposal.

The current process works for us and my recommendation to you is to share some of your ideas with the board when they send the ToR to the community for inputs in the next iteration.

So this won't work and I have serious problems with this proposal and I strongly oppose it.



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