[rpd] Clarifications about the Appeal Committee

[Fernando Frediani]

Perhaps we have a problem with the legal advice Board has been receiving.

If I understood correctly legal advise told the Board that Appeal 
Committee cannot work if not with 5 members (without mentioning which 
clause in the ToR "clearly" says that it has always to have all 5 
members). I have just re-read it and cannot find a single mention that 
it cannot work without all 5 members.
2.3 is a clause that shows that the Appeal Committee can in fact work 
with less than 5 members. It says that "If the committee of the board 
believe ..." so it is not a must do thing.

4.2 is not the case and therefore does not apply for the current 
situation which is resignation and not conflict of interest.

Nowhere in the ToR says that the Board may suspend an ongoing appeal so 
I am in doubt if that was a order given by the Board of just a 
suggestion. Also it would be interesting to hear from the remainders 
members of the AC how they took this and if they decided to voluntary 
wait or they understand as something they must follow.

With regards a possible revision of the ToR I hope that the Board shares 
with PDWG for final comments a candidate version they are considering 
before proceeding given also that an online questionnaire has been 
available last year (via vox.afrinic.net number 416936).

Regards
Fernando

On 15/03/2021 11:01, chair at afrinic.net wrote:

> Dear Colleagues,

>

> The Appeal Committee is a committee appointed by AFRINIC's Board of 

> Directors, as stipulated in AFRINIC's Consolidated Policy Manual  

> (CPM) - clause 3.5 refers.

>

> In accordance with the provisions of the CPM and the Appeal 

> Committee's ToR https://afrinic.net/policy/appeal-committee#tor, an 

> Appeal Committee was duly appointed and constituted of five (5) persons.

>

> On February 16th, 2021, the Board of Directors became aware of two 

> members of the aforesaid Appeal Committee's resignations.

>

> The Board of Directors acted promptly and was legally advised that, in 

> the absence of an expressed provision to that effect (i.e. quorum) in 

> the Appeal Committee's ToR, all five (5) members of the Appeal 

> Committee, including any designated chairperson thereof, constitute a 

> quorum for the purposes of the Appeal Committee.

>

> The Board of Directors sought legal advice to address this issue. It 

> was advised that based on the provisions of the Appeal Committee ToR, 

> the said committee is only lawfully constituted by five members. Any 

> other interpretation would contravene the clear provisions of the ToR.

>

> The Board of Directors' attention was also drawn to clauses 2.3 and 

> 4.2 of the Appeal Committee's ToR whereby provisions have been made, 

> inter-alia, for the temporary replacement of members of the committee 

> following recusal of the latter which therefore supports the 

> contention that the Appeal Committee, was for all intents and 

> purposes, a committee to be composed of five (5) persons at all times.

>

> It is in this respect that, on 18 February 2021, the Board of 

> Directors, through its Chairperson, duly informed the remaining 

> members of the Appeal Committee of the situation as well as advising 

> the latter to await the reconstitution of the Appeal Committee before 

> proceeding with any pending appeals.

>

> The Board of Directors is aware of all the ensuing discussions on the 

> matter and is also of the considered view that the Appeal Committee's 

> ToR, as is, may need to be reviewed.

>

> In the circumstances, the Board of Directors is presently considering 

> the most appropriate option with the objective of ensuring the 

> existence of an Appeal Committee (ad-hoc or otherwise) so as to deal 

> with all pending appeals expeditiously.

>

> The Board of Directors hereby informs the community that the 

> reconstitution of a substantive Appeal Committee remains its top 

> priority and will take all measures to do so within the shortest 

> possible delay.

>

> Regards,

> S. Moonesamy

>

> Board Chair, AFRINIC

>

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