[rpd] Statement from Legal Counsel

[JORDI PALET MARTINEZ]

Exactly, the legal opinion should have been there since day 1.

 

Despite that, as I’ve explained in several emails, the Board can’t impose nothing to the community.

 

And actually, what this policy is proposing is correcting a problem in the bylaws. Bylaws state that the board can adopt “urgent policies” (and only for resource management, NOT for the PDP itself) and then ask for the community endorsement. Note that the only way for the community to endorse a policy is following the PDP itself, so that means that the board should submit any policy that they adopt, to be endorsed, as a policy proposal itself, following the consensus bottom-up process.

 

What this policy is about, is to *allow* the bylaws to be correct and not need to modify them, otherwise, the bylaws are enforcing a breach of the PDP, which should be brought to ICANN, as it constitutes an ICP-2 breach. 

 

Regards,

Jordi

@jordipalet

 

 

 

El 15/12/20 17:27, "Sunday Folayan" <sfolayan at skannet.com> escribió:

 

Dear Legal Counsel,

Dear Board Chair,

 

Permit me to make the following comments on the Legal Counsel's email. 

Clearly, the CPM states:

 
3.4.4 Approval
The Working Group Chair(s) shall recommend the draft policy to the AFRINIC Board of Directors for approval if it has the consensus of the Policy Development Working Group. The recommendation shall include a report of the discussions of the draft policy and feedback from the Last Call. The draft policy shall be ratified by the AFRINIC Board of Directors.

 

I therefore submit that:

1. The Co-Chairs followed the process as contained in the CPM. 

2. An impact Assessment was made initially. Legal opinion should have been sought at that point. 

3. Another impact assessment was made after the policy has reached consensus. Which is fine, no need to panic

4. If indeed the PDWG overstepped its bound, the Board can simply not approve the policy, and explain why, to the PDWG. 

5. There was no need sharing herein, the Email from the CEO to the Co-Chairs. What was that supposed to achieve? 

6. What about the emails between Co-Chairs and the Policy liaison? Do we also need those to get a full picture? I do not think so.

 

On to the Impact Analyses at https://afrinic.net/policy/proposals/2020-gen-004-d2#impact that you want the PDWG to take note of, specifically:

"Thus, it goes without saying that the "appointing body" always determines the ToRs for the "appointed body". To act otherwise would only create havoc and unnecessary conflicts between the existing Section 3.5 and the newly proposed Sections 3.6 & 3.6.1".

For clarity, the appointing body is the PDWG. The appointment role is however delegated to the Board, via the line in the CPM that reads:
3.5  Conflict Resolution
1.    A person who disagrees with the actions taken by the Chair(s) shall discuss the matter with the PDWG Chair(s) or with the PDWG. If the disagreement cannot be resolved in this way, the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors. An appeal can only be filed if it is supported by three (3) persons from the Working Group who have participated in the discussions.

 

So ... clearly PDWG appoints, with the Board acting on its behalf. Until there is an appeal, the Board cannot ask that an appeal be heard. The trigger is the PDWG, not the Board. The Board obviously cannot fail to appoint either the Appeal Committee or the Recall Committee, because they are both enshrined in the CPM.

At this point, it is important that the Board should also pull the brake on totally claiming responsibility and authority for the Committee's TOR. If PDWG members are raising issues now, the Board should not rely on precedence, which was clearly done with the concurrence and input of the PDWG ... as at that time.

 

I advise that you please re-direct the legal advise to the AfriNIC Board. I am sure they know exactly what to do with it, as the policy cannot be operated without the approval of the same Board, as delegated by the PDWG, and as enshrined in the CPM.

 

Best Regards ...

Sunday.

 

On 12/9/20 5:22 PM, Ashok wrote:

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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