[rpd] Statement from Legal Counsel

[Arnaud AMELINA]

Hello, PDWG members

It appears in recent communications from legal counsel that co-chairs have
recommended some draft policies for approval by board.

Why are the recommendations, including the reports prescribed by section
3.4.4, not published on this rpd for the sake of transparency and the
practices in the matter?

Where did the resource transfer proposal version 5.0 come from?

We seem to have abandoned the PDP and its key underlining principles.

Regards

--
Arnaud

Le mer. 9 déc. 2020 à 16:25, Ashok <ashok at afrinic.net> a écrit :


> *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

> <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 *

>

>

>

>

>

>

> _______________________________________________

> RPD mailing list

> RPD at afrinic.net

> https://lists.afrinic.net/mailman/listinfo/rpd

>

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