[rpd] Statement from Legal Counsel

[Sylvain Baya]

Dear PDWG,

Please see my comments below...

Le mer. 9 déc. 2020 17:23, 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.*

>

>

Hi Legal Counsel,
Thanks for your, welcomed, email.

*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.*

>


...so! facts.

*I hold no mandate to interfere in the work of the PDWG and/or its

> independence I shall refrain from doing so.*

>


...you *should* never try :-)

*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.*

>


...this is exactly what this PDWG [1] was missing,
for so long time. See PDP [2] at CPM section 3.4.0 [3]
...we were asking for legal advices without any response.

Even if i don't know who requested for this legal
advice, i think it could be really useful to have
such a useful help; which might boost this PDWG [1].

~°~
3.4  Policy Development Process

Anyone can submit a proposal. Policy proposals are submitted to the
Resource Policy Discussion mailing list (rpd at afrinic.net) by the author.
AFRINIC will provide administrative support and assist the author(s) in
drafting the proposal *if requested*. AFRINIC shall also provide relevant
facts and statistics *if requested* during the discussion.
~°~

*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.*

>


...i agree! yes, all the PDWG [1] work/actions matter.

*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>**. *

>

>

Dear Legal Counsel (LC), please, have you
contributed to that Impact Analysis Report (IAR)?

...if yes (as intended)! then do you think that your
intervention, out there, was not sufficient?

...maybe you have some advices which can help
volunteers to improve the PDP [2]; in a way that
the PDWG [1] could gain more support from Staff?

Please let us know.

*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.*

>


Please can you be more explicit?

*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.*

>


...when you say: "...it is my humble view..."
Do you mean you as AFRINIC's Legal Counsel
or simply as Mr Ashok? i'm not clear with it here :-/
Please clarify, brother.

...then what should we do to follow your advice?

*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.*

>


...this is where it is really difficult to follow
your argumentation.
Look, you seem to ignore that the PDP is organized
in such a way that all DPP *must* be ratified
by the BoD (Board of Directors). Do you think
that BoD's members are not responsible enough
to take actions as the PDP [2] allows them to?

...i may be wrong! if it's the case, please brother,
correct me :-)

*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. *

>


...this advice is welcome!

Maybe a DPP should be pushed for clarification?

...any tacker?

*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, *

>


...please Legal Counsel, note that your advices,
when requested, shall always be welcome
here, as the PDP [2] stipulate it [3]. Then it's important
that you follow the PDP [2] yourself. Then, please,
don't urge the PDWG [1] again; because i don't
think it's your role :-/

* 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.*

>


Please LC keep this advice to the AFRINIC's BoD;
because i think they are more equiped to solve
your legal concerns...

*Ashok.B.Radhakissoon.*

>

>

> *Legal  Counsel *

>

>

>


Again, many thanks for your email!

...as said, next time wait a request before intervening
in any situation where you see that the PDWG [1]
needs clarifications in any legal aspects. The PDP
states that you *must* freely provide your
legal advices to the PDWG [1] only when requested.
Or use the IAR (Impact Analysis Report) tool to
provide it.

Please, Legal Counsel, start to monitor this
mailing list, to help the PDWG [1] to quickly
understand legal questions raised here.
__
[1]: <https://www.afrinic.net/policy/manual#PDP-Process>
[2]: <https://www.afrinic.net/policy/manual#PDWG>
[3]: <https://www.afrinic.net/policy/manual#PDP-Process>

Blessed tuesday!

Shalom,
--sb.



> [...]

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