[rpd] Statement from Legal Counsel

[JORDI PALET MARTINEZ]

Hi Ashok, all,

 

In the attached document (email from the CEO to the co-chairs), it seems that the board is trying to alter the decision of the co-chairs and the PDWG, which is quite unfortunate behavior and against ICANN ICP-2 which given AFRINIC the responsibility of bottom-up consensus-based approach, but not a mandate to act against the community decisions. At least those emails should have been made in the public mailing list, not in private to the chairs.

 

Now, responding to the staff analysis, there are many aspects that are incorrect and require a response from the legal perspective, board and/or staff:

 
Section 3.5 of the PDP mandates the board to create an Appeal Committee, but NOT to alter the PDP as the ToR is doing in order to have the Appeal Committee to interpret the CPM in a stricter or different way as the PDP section 3.5 itself. In other words, the PDP is and MUST be self-contained. No additional documents should provide *different* rules or interpretations. And this applies to section 3.5 and the complete CPM, unless a specific section of the CPM itself provides some “degree of freedom” to the staff or the board to establish further procedures, but *never* contradicting or restricting the PDP itself. In fact, in other RIRs where there is an appeal process, there is nothing else than the CPM itself for that. So, there is no need to have a ToR. The sections 2.0 of the impact analysis state that the board should set the ToR. Can you explain where in the CPM say that? Why is not needed in other RIRs or similar institutions and instead is needed in AFRINIC?
 
As explained several times, the mention of the Appeal Committee in the proposal justification is only an example, the problem is beyond that. The problem is that the ToR is just an example of what the board can do, if we accept that, against the CPM contradicting the PDP, the ICANN ICP-2 and the *bylaws* itself.
The bylaws section 11.4 state:

“11.4 Notwithstanding, the provisions of Article 11.2 the Board may adopt such policies regarding the management of internet number resources where it considers that the same is necessary and urgent, having regard to the proper and responsible usage of these resources.”

And it follows with:

“11.5 Endorsement of policy adopted by the Board:
Any policy adopted by the Board under the provisions of Article 11.4 shall be submitted to the community for endorsement at the next public policy meeting.
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; however, any action taken in terms of the policy prior to such nonendorsement shall remain valid.”
 

Let’s analyze this:
“the Board may adopt such policies regarding the management of internet number resources where it considers that the same is necessary and urgent”. This is normal, because in exceptional circumstances, the board needs to protect the resources and the membership.
It is clear that the ONLY valid procedure for the board to adopt such urgent policies is only by means of the PDP, not independent disassociated additional texts or documents. The ToR is an example of that.
However, this allows the board ONLY to adopt policies “regarding the management of internet number resources”, NOT regarding other matters of the PDP. The ToR is an example of that. The board has circumvented the PDP (I’m sure this has been done without bad faith), by creating a ToR which is an “extension/modification” of the PDP itself, and NOT related to the management of the Internet resources.
Even in the case if we consider that 11.4 (I’m sure the text is sufficiently clear about that), the 11.5 indicates that the Board should still follow with a formal endorsement of that *policy* (so PDP text, not independent documents) in the next public policy meeting. Which has NOT been done!
As a consequence, 11.4.2 already indicates that not being endorsed by the community as PDP text in the “next” policy meeting, it decays, even if previous actions taken shall remain (so previous usage of the ToR shall be considered valid, but not anymore future ones).
 
The staff assessment say “In light of the above, therefore, it may reasonably be viewed that the proposed policy is akin to an encroachment on the powers of the Board of Directors.” This is FALSE. The proposal is only re-stating what is already part of the ICANN ICP-2 and the PDP and the bylaws.
 

The policy re-enforces what is obvious: “The AFRINIC Board or Committees can’t amend or re-interpret the CPM, including the PDP, and even less, restrict the rights of any community member, following the Consensus and Bottom-Up approach, as set by the PDP. ”

 

The Board ONLY can amend the CMP, following the PDP. The bylaws *allow that*, and this policy *re-state it* (“In exceptional situations, duly justified, the Board may define temporary procedures or policy changes, which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal. Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus.”

 

This makes the PDP to *match* the bylaws and actually *allows* the bylaws to have the text in section 11.4/11.5.

 

Otherwise, the bylaws *ARE CONTRADICTORY* with the PDP and the ICANN ICP-2, because the mandate provided by ICANN doesn’t allow the board to take decisions *ON TOP* of the community.

 
We MUST remind that the community has the mandate on the PDP, NOT the Board. So, this policy authorizes the board to have that provision in the section 11.4 and 11.5 of the PDP and *ensure* that the Board follows it, which has not been done till now. The Board, again, I’m sure that acting in good faith, has “upgraded” the PDP without using the PDP, which is against the bylaws itself!
 
We can’t allow that the Board jumps over the PDP even if in good faith, by means of “additional” documents. If the Board believe that something is needed to clarify *anything* in the PDP, it *must* be done following the PDP and in exceptional circumstances we allow the board to use the section 11.4 of the PDP, but at the same time, ensuring that it comes back to the PDP process for endorsement, as stated in 11.5.
 
The Board has NO discretionary powers *OVER the PDP* despite what is said in the bylaws. The bylaws, and the Mauritius laws can’t bypass the decisions of the PDWG, which is a wider/global community. So no, this policy, is not trying to encroach the board powers, because the board *don’t have them* never mind what the bylaws say. On the other way around, this policy just makes sure that the Board has now this attribution provided by the community! It was a severe fault of the bylaws to have such a text without being backed up by the PDP.
 
Regarding your inputs on section 3.6.1, the version of the proposal that was original submitted had this text “As an exception of the preceding paragraph, in the absence of elections processes for aspects related to the PDP (co-chairs, appeal committee), those aspects will be still handled by the board in consultation with the community. However, this is also a temporary measure and also specific draft policy proposals should be introduced for that.” This was asked to be removed by the co-chairs. The author intend is to make sure that a “transition” period is explicitly allowed.
 
However, the ratification of this policy *allows* the Board to use this policy for this first time, by ensuring with a Board urgent policy, that the existing committees processes or policies are still *valid* until the next meeting, so no problem is created.
 
So, responding to the legal assessment question 1., it clearly says that the Board, when ratify this policy, must also think what committees’ processes or policies shall remain valid temporarily, until approved as a policy by the community at the next meeting. So that means that if the ToR are considered as a *must* (which I don’t think so, again, other RIRs don’t need them), the relevant text must be introduced as a policy proposal to be endorsed.
 
Responding to the legal assessment question 2, I only removed that because the chairs (wrongly in my opinion, as your questions are clearly showing now) asked for it. Nevertheless, as already explained, it is not an essential text, because the Board is authorized by this policy to decide what should be kept as working policy *until is properly re-introduced* following the PDP and the bylaws.
 
Responding to the legal assessment question 3, you need to read the full paragraph: “In exceptional situations, duly justified, the Board may define temporary procedures or policy changes, which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal. Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus.”
 

A) The policy enables the board to use 11.4 of the bylaws (“In exceptional situations, duly justified, the Board may define temporary procedures or policy changes”).

B) Because the board then needs to follow 11.5 (“which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal”), in order to facilitate the endorsement, as it may happen that the next meeting is already “in the next few weeks” (one example of a possible case), the Board *CAN* ask the chairs to use the “Varying the Process”. This is why there is specific text on that: “Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus.”. The bylaws do not resolve that problem, so this policy is providing a solution. Otherwise, it may happen that the board need to implement an urgent policy and there is NO time for being endorsed in the next meeting, and then following the bylaws, it will decay!

 
It is wrong that the “Varying the process” can’t be used for that. There is nothing in the PDP that prevents that, it is just making sure that the chairs agree with the Board in the need for that. Nothing prevents the chairs to consult with the community before taking that decision, and this will also show, in the mailing list, what is the feeling of the community if the Board were attempting (just an example), to impose something that it is clearly against the community view. So, this is only an “add on” helping to board to get something approved faster if not in time for the next meeting, etc. Note that NOTHING in the PDP prevents the board, or some of the board members, to submit a policy proposal or to openly ask some community members to take care of it if they wish the keep a more open neutrality.
 
Regarding section 3 of the impact analyst, it has been explained already before, but here is it again: There is no need for any ToR. There is no such thing in other RIRs, IETF, etc. for the appeals handling, the PDP must be self-contained. However, if the Board believes is needed as a temporary measurement, they can, at the same time as the policy is ratified, approve an urgent policy for the ToR, and then explain why and what parts are needed to be submitted as a policy proposal to be endorsed (or not) in the next meeting. An alternative is also that the Board only ratify the policy *once* the Appeal Committee finish their work with all the pending appeals. There is not really any difference, and the board has not any fixed time-frame for the ratification of policies according to the PDP.
 
Regarding the Conclusion section, is plain wrong. This policy gets the PDP in-sync with the bylaws. Actually, bylaws are doing something which is AGAINST the PDP and it has been demonstrated that the board, again I’m sure not in bad faith, has generated an “addenda” of the PDP with the ToR, without following the PDP, neither the bylaws. I fully taken in consideration every word in my proposal, and all the legal aspects and implications. The problem is that you’re assuming that the Board has “power” over the community, which owns the PDP and CPM, and this is NOT THE CASE. Having something in the bylaws, which encroach the community power on the CPM/PDP may be legal in Mauritius, but it is against ICANN ICP-2 and the mandate of the Consensus Bottom-Up approach.
 
Finally, to remark that the bylaws *only* authorize the Board (11.4) on “management of internet number resources” which doesn’t include *clearly* the PDP itself. The PDP is not an Internet resource!
 

 

I want to insist in one last thing. If the Board or Committees are allowed to do “addendas” to the CPM such as the ToR (again, understand that this is only an example of the case, but the problem is much bigger than that), then it means the Board or Committees are bypassing the PDP itself and may be creating “rules, procedures, etc.”, which aren’t really endorsed by the community. And we shall remember that endorsed by the community is only posible by means of *consensus botto-up*, not using an “addenda” circulated to get the feeling, but not published as a formal policy proposal, etc.

 

Last point, regaring Ashok text: “However, should the PDWG maintain its stand in respect of the above, then the appropriate motion has to be made during an AGMM, pursuant to Article 7.7 of the bylaws to amend articles 3.4, 15(1), 15(2) and 15(3) of the bylaws thus allowing the powers of the Board of Directors to be subjected to the directives and guidance of the PDWG.”

 

This is not needed because 3.4, 15.1, 15.2 and 15.3 are about the company, NOT the community, not the PDP. I re-read many times the complete bylaws, and those specific articles, and there is nothing contradicting the policy. As said on the other way around, this policy allows the Board to get granted by the community responsabilities that the bylaws, despite the text in 11.4/11.5,  don’t have any meaning, because the bylaws have NO POWER on top of the community.

 

Regards,

Jordi

@jordipalet

 

 

 

El 9/12/20 17:30, "Ashok" <ashok at afrinic.net> escribió:

 

Dear Community members,

I refer to AFRINIC’s Chief Executive Officer’s emails dated 30 November 2020 and 03 December 2020 sent to the PDWG’s Co-Chairs to which I was in copy thereof. Copies of the said emails are also herewith attached.

As AFRINIC’s Legal Counsel I wish first to draw your attention to the PDWG’s Co-Chairs’ declaration of consensus dated 07 October 2020 in respect of the policy entitled 'Board's Prerogatives' – AFPUB-2020-GEN-004-DRAFT02- as well as the policy entitled 'Resource Transfer Policy' –AFPUB-2019-V4-003-DRAFT04- whereby in the latter case, consensus was initially declared on 07 October 2020 and which was subsequently reversed by the Co-Chairs on 17 October 2020.

I hold no mandate to interfere in the work of the PDWG and/or its independence I shall refrain from doing so.

Nevertheless, I deem it my duty to tender my advice, for whatever it is worth and without in any way pressurising, the PDWG, an AFRINIC-related body to be bound by same.

My advice addresses the aforementioned two policy proposals  and my purpose is to ensure that the work of the PDWG thereon  as well as its outcome are both legally in order. I have given anxious consideration to this matter and also bear in mind that where the acts and doings of the PDWG are not legally in order, same may have a detrimental effect on the image and reputation of AFRINIC both as a corporate body and responsible RIR. 

In regard to the policy entitled 'Board's Prerogatives', I have taken note of AFRINIC's Staff Assessment report dated 04 November 2020 - https://afrinic.net/policy/proposals/2020-gen-004-d2#impact. 

You may have noticed that the said report has raised both serious governance and operational issues as well as areas of uncertainty observed in the proposed policy which has, up to now, remained unaddressed. 

Consequently, it is my humble view that the PDWG may in its wisdom consider to review its own stand in respect of these policy proposals so as to avoid any form of encroachment, potential or otherwise,  onto the Board of Director’s prerogatives, the foundations of which are grounded in articles 3.4 and 15 of the AFRINIC’s bylaws. 

However, should the PDWG maintain its stand in respect of the above, then the appropriate motion has to be made during an AGMM, pursuant to Article 7.7 of the bylaws to amend articles 3.4, 15(1), 15(2) and 15(3) of the bylaws thus allowing the powers of the Board of Directors to be subjected to the directives and guidance of the PDWG.

As regard the policy entitled 'Resource Transfer Policy', the PDWG may be aware that the said policy (i.e. version 4 thereof) is presently the subject of an appeal before the Appeal Committee and the matter is yet to be determined. 

Consequently, the PDWG is hereby informed and advised that it is a matter of sound and settled legal principle that, pending the outcome of the Appeal Committee proceedings, it (PDWG) refrains from entertaining any request emanating from the relevant co-authors of the said policy proposals for further amending these proposals on the legal principle of pendente lite. It is also my considered view that any attempt in the meantime by the latter to submit a newly purported version of their policy proposal will be inadmissible (non-receivable) in law. 

To close my submission may I urge the PDWG to give due weight to my non-binding legal advice and consequently appreciate the real risk of AFRINIC, in the event that the Appeal proceedings are ignored, having to ratify and implement two policy proposals, on the same subject matter, which would lead to an unprecedented conflictual situation. 

Ashok.B.Radhakissoon.

Legal  Counsel


 





 

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