[rpd] Statement from Legal Counsel

[JORDI PALET MARTINEZ]

Hi Ashok,

 

Separate email so not to mix two different topics …

 

I’m trying to understand this (regarding Inter-RIR proposals):

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. 
The PDP allows the authors to amend their proposals *at any time*. Even bylaws don’t have any mention on that.
This is possible regardless of any pending appeals processes.
It may happen that the appeal fails, the policy is implemented, but the community *can still* disagree with it and use the other policy proposal to reach consensus and that will mean that the *last* policy that reach consensus will be the one to be implemented, even if the previous one was already implemented or in the process.
The PDP is very “wise” on that, because it is designed precisely to allow the community to change their mind at any time.
What law are you referring to? The PDP is NOT subjected to the Mauritius law. AFRINIC (as an organization) is bound to the Mauritius law, but the community mandate is ON TOP OF THAT.
The Board can decide not to ratify a policy if they can demonstrate that it creates a legal problem for AFRINIC, but definitively nothing under discussion now has any such implications. An example of what could be considered discriminatory and could not be ratified by the Board will be “only blond hair people is allowed to participate” and even in that case (if that stupid thing reach consensus), I fail to see if there will be any legal implications for AFRINIC in Mauritius, because Mauritius law doesn’t apply to a global community.
The Board can decide not to ratify a policy if it creates a conflict with another policy in the case BOTH of them reach consensus at the same time, but is not the case.
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. 

Which Appeal Proceedings you mean the ToR? Can you please, STATE CLEARLY what specific points on the ToR are “essential” and not already covered by the PDP?

I fail to see *anything* that will create the world to fall down if we just ignore them. The CPM is and MUST BE self-contained. If the Board want to have a procedure to select the Appeal Committee composition, I’ve no problem with that, because clearly 3.5 say “Appeal Committee appointed by the AFRINIC Board of Directors”, so that part is an attribution of the Board.

However, the ToR “Filing an Appeal” is only a repetition of what the PDP already has with additional text for the Board interpretation, which is incorrect as it adds things that *never* have been approved as a policy proposal by the community, which is against the PDP and AGAINST 11.4/11.5 of the bylaws!

Sections 1 to 4 of the ToR are (in my personal view) acceptable as an *internal* Board/Appeal Committee thing, but section 5 is AMENDING the PDP with a very specific interpretation, which is may points is broken. Anyone submitting an Appeal is ONLY bound by the PDP not by the ToR and as said several times, a previous Appeal was ignored because it was not following the ToR, not because it was not following the PDP.

The Board *can’t* amend the PDP by means of external documents. The PDP can only be modified following the PDP itself and in urgent situations following 11.4/11.5 *if* the community allows it (not actually with the current PDP).

 

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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