[rpd] Statement from Legal Counsel

[JORDI PALET MARTINEZ]

Even better than that. The Board Prerogatives Policy allows the bylaws to be as they are right now. Otherwise, the bylaws are against the PDP and clearly AFRINIC has not and can’t have any superior power on top of the community!

 

Regards,

Jordi

@jordipalet

 

 

 

El 13/12/20 22:39, "Paschal Ochang" <pascosoft at gmail.com> escribió:

 

Dear Community,

 

I’d like to point out the following remarks:

1.            Any legal mentions in the email regarding the PDWG are invalid and deemed wrong since Afrinic’s work and operations are a separate entity from the PDWG. Basically, in the PDP, the CPM is its bible and the community is its god. Law has no relevance at all, as Jordi said, the CPM must be SELF-CONTAINED.

2.            Nowhere in the CPM does it state that the co-chairs cannot respond to the authors of the policies appealed. As said before, only the CPM rules in the PDP and nothing else such as “the legal principle of pendente lite” as clearly AFRINIC is not a court.

3.            There has been no request from the community for Afrinic’s legal assessment. This a breach of the CPM (3.4/3.4.1). Unless someone from the Afrinic Board can justify who requested for their judgement, the legal assessment should be disregarded for its violation of the CPM.

4.            For the Resource Transfer Policy, the co-chairs stepped back by extending the last call period and allowing the community more discussion time (which was requested by members of the community), which renders the appeal invalid. As for the final decision on consensus, it is still valid since it has not being filed for an appeal in the 2 weeks period that has followed.

5.            The Board Prerogatives Policy has reached consensus smoothly and was neither appealed nor challenged. The community always comes first and Afrinic must adapt its bylaws so as to satisfy the community’s needs, as simple as it is. 

6.            We are today facing an unprecedented situation. The very foundation of RIR system’s legitimacy, the bottom up process, is at risk. if AFRINIC ltd is being viewed as directly interfering with community and co-chairs’s independence, a potential interpretation of top-down approach, Governments and ITUs could come along and claim the very legitimacy of  RIR system(the community and its bottem up process) no longer exists, arguing that the system itself no longer serves its function and should be dissolved.


On Sunday, December 13, 2020, Arnaud AMELINA <amelnaud at gmail.com> wrote:

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. 

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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-- 
Kind regards, 

Paschal.

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