[rpd] Statement from Legal Counsel

[Sunday Folayan]

Dear Arnaud,

I must have missed some embedded message in the Legal Counsel's email.

Can you please point out the relevant line in the Legal Counsel's email, 
that seems to say, or suggest that a recommendation was made to the 
Board by the Co-Chairs, that the PDWG is not aware of. This will help me 
make a better interpretation of the Email and its content.

Thank you.

Sunday.

On 12/13/20 11:35 AM, Arnaud AMELINA wrote:

> 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 

> <mailto: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**. *

>

>     *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

>     presentlythe 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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