[rpd] Statement from Legal Counsel

[Arnaud AMELINA]

Dear Sunday

We saw in communication from legal, discussions between CEO and cochairs
about  2 proposals which were recently in last call  with the outcome we
all know.

The WG was not informed by the cochairs  about  the origin  and motivations
of these discussions.

I could not imagine ceo/legal intervening  in discussions on proposals
without  WG or co-chairs request..  thus I query for information about what
it is going on.

Regards

--
Arnaud

Le dim. 13 déc. 2020 à 13:50, Sunday Folayan <sfolayan at skannet.com> a
écrit :


> 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> 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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>

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