[rpd] [Community-Discuss] Call for AFRINIC’s registry service migration to other RIRs

[JORDI PALET MARTINEZ]

Hi Owen,

 

I said “invalidate the articles …” not the bylaws. It may be a language problem. In Spanish this is understood as “those specific articles, not the full complete bylaws”. I’ve seen several courts resolutions invalidating concrete articles of all kind of organizations, so this is something very common. In fact, those articles, or in the case of a contract, are called “leonine clauses” (not sure in English has the same meaning).

 

Any kind of articles or clauses that are against law (and that includes managing assets that you don’t have the right to manage), are automatically illegal, void, invalid, unnaplicable, “of no effect”, …, call it the way you prefer. The rest of the document may still be valid according to law (even if then it loses the practical effect that it was desired).

 

I’ve a better example for the RIRs system than talking about anyone assets.

 

There is land, with river, forest, seaside, lots of natural resources, including air, sun, etc. Those are the resources.

 

There are 125 owners (some are singles, others are families). This is the community. You can say the community is individuals, I agree, so it may be 250 folks in total. My point is relevant as you keep reading. Also remember that some community members sometimes instead of speaking on their own, are “representing the organization on whigh they are employed” – even if we could disagree with that way of participation, it is reflecting the reality.

 

All them decide to build a set of houses, split in groups of 25 each, because it is the way it matches the natural borders (river, forest, etc.) and by chance, different countries. Each set of houses it is a RIR. I know, the population or geographical coverage is not the same, it doesn’t matter for our case, it is just a way to simplify the example.

 

They also agree to have a single umbrella, because the resources are common in order to have a ground for decicions that affect all them. This could be ICANN/IANA. Of course, they can decide to change it at any time.

 

To keep it simple, we take from now on a single set of 25 houses.

 

Now, 5 of the 25 owners (it may be singles, it may be families, etc., singles are end-users, families are ISPs), decide to create an organization for offering common services to anyone willing to join. They have water and electricity distribution, they have tennis courts, gardens, swimming pools, etc. Somebody need to take care of the maintanance of all those services.

 

So the 25 families agree that they will use that organization: “even better” they are part of the group and they are doing this non-for-profit. The organization is created (AFRINIC).

 

The organization is created with certain duties (bylaws) just for taking care of the services (registration, training, etc.), not for setting the rules (policies). Of course, if you want to get water from this company you need to sign an agreement (RSA), and pay the relevant costs for the services (fees).

 

When they need to change the rules, they need to agree (the PDP) in those rules (CPM, policies). For example, what is the schedule of the swimming pool, because there is a lifeguard (no sense to have it 24 hours, too expensive), or no way to allow you to take the Sun 24 hours next to the swimming pool as the garden needs to be irrigated and maintained and not having an “opening hours” schedule will make it dificult. We can figure out hundreds of rules, our policies.

 

It must be clear that the 125 owners can freely participate in the setup of the rules, because even if there are geographical barriers, they are common. For example he air is clean because the forest: nobody can destoy it, it will affect the others. The river supply water to all: nobody can polute it, because the next set of houses will get contamiated water.

 

Now, the organization gets crazy, or by mistake, they had articles in the bylaws that *even it was not the original intent* can missmanage the overall community resources. The community never agreed (and this is not the case in the other 4 sets of 25 owners) that the organization can fix the schedule of the swiming pool by themselves. The community never agreed that they can cancel the water or electricity supply in one day if you delay the fee payment by one day while the community agreed to allow up to 3 months before taking actions.

 

Moreover, the community never agreed that the organization decides that you can’t use part of you private land for your own garden, having a small swimming pool, and a place for sunbathe. The membership just agreed that if you want to be nude for your sunbathe, your area is protected from the sight of the common areas.

 

The 25 or even more, the 125 owners can perfectly decide that, because the organization is crazily doing their own things, out of the control of the communiy and out of the scope of the intended original bylaws that never granted the right to change the rules apart from the established system (PDP), the organization need to be adjusted.

 

This can be done in many ways, for example (no particular order):
Asking the participants of the organization to amend the rules to be as originally intended.
Stop using that organization and creating another one that follows the community rules.
Well, it is good that the organization in case of an emergency situation can temporarily amend the rules until we can meet together and decide about that: So granting *in the rules* the right to do so.
Keeping the bylaws as they are, but at the same time, granting that right to that as in 3 above.
 

I’ve not depicted the Board, but I think it is easy to figure out that the example organization need to have some management, as well as staff, etc., etc. The Board is just a representation of the partipants of the organization, nothing else, they don’t have special rights, and they need to follow the rules, exactly the same as the others. They can be changed if needed, and they have the duty to do the best for the organization without desobeying the rules set by the community, because the organization has an *exclusive contract service* with the community, they can’t provide services to other communities, unless explcitly approved in the rules (not the bylaws).

 

Yes, for simplicity, I’m missing that each set of 25 houses may be in a different country/jurisdiction, etc., but more or less the consecuences will be very very very close, as in the case of the RIRs all them are stablished in countries with laws very close, if not the same, towards our case here.

 

So I need to disagree, unless *independent* laywers that really can tell us that it will be against the Mauritius law opting for option 4 above.

 

And if that’s the case, and the membership doesn’t want to amend that, the community has the right to cancel the contract and find their alternative way or the membership has the duty to find a better country to legally host the organization. I really really really hope this is not the case.

 

I’m 100% convinced that the legal assistance that AFRINIC is getting is not good enough. We all make mistakes, but those mistakes are affecting all and that shall be amended.

 

I strongly disagree on your last paragraps. You just need to see how the policies in several regions explicitlly grant the right to the Board to ratify the policies and not grant them the right to make their own policies (which I believe they shall do in urgently cases, but subjected to community endorsement via the PDP at the next meeting). See also other RIRs, where even there is no ratification from the Board. What the commuty decides must be implemented.

 

We are not *overriding anything*, on the contrary, we are explicitly granting the right that they “hickacked” (by mistake or not) from the community in the bylaws, because the community agreed is right that they need to have it, but ensuring that the bylaws *in fact* are followed by the PDP endorsement at the following meeting.

 

Only a diabolic distorted reading of the already taken community decision can seem anything different, which I fail to see and that despite having asked very specific questions on that to understand that vision, have not yet been responded. I fully understand that the organization has now more severe and urgent matters to resolve, but this point is so simple that could even provide a community endorsed solution to many of those headaches. It is working on the side of the Board decisions, not against. The community consensus supported the Board urgent policies: The bylaws on that aspect are void, and if the Board take decisions on policies without ratifying this policy, then the community can invalidate them.

 

Regards,

Jordi

@jordipalet

 

 

 

El 5/8/21 1:34, "Owen DeLong" <owen at delong.com> escribió:

 

 



On Aug 4, 2021, at 01:44 , JORDI PALET MARTINEZ via RPD <rpd at afrinic.net> wrote:

 

Hi Owen,

 

If I create a company to handle you own personal assets, without having been empowered by you to do so, that invalidates the articles in the bylaws of my company.

 

Well, it doesn’t invalidate them, but the company would never gain access to my personal assets in the first place. As such, this example does not apply to the current situation with the RIRs.

 

Will you agree on that?

 

No. See above. The bylaws of the company remain valid, but the company lacks the ability or authority to obtain control of the assets in question.

 

The Internet Resources are from the community, not AFRINIC, not any RIR (maybe it is slightly different in the case of ARIN, we know, at least for the IPv4 ones). It is true that it is a complex legal battle to dispute that. That’s why it is easier that the Board, even if they need to consult with the membership, recognize the mistake and resolve that. One way is ratifying the policy that they decided not to.

 

This is where our convenient use of imprecise (and even inaccurate) terms gets us into trouble. There are seriously nuanced issues here that require some clarification about the terminology we commonly use and the incorrect thought processes it creates.

 

So please bear with me as I’m sure some of the things I say below will evoke negative reactions, but please do read through to understand the full context of my explanations. Try to keep an open mind and truly understand the deeper more nuanced way in which things are actually structured. It’s truly a beautiful thing because it simultaneously holds everyone accountable while avoiding any sort of super-powerful central authority. Most impressively, it creates very very few perverse incentives (at least up to the point where you start attaching dollar values to registrations).

 

There is no such thing as “Internet Resources”. There are integers. Nobody owns integers. Nobody controls integers.

 

There is such a thing as registrations of numbers for uniqueness among cooperating entities for a particular purpose.

 

AFRINIC is one of the 6 cooperating entities that currently operate collectively as the central registration authority for a fiction we collectively refer to as “The Internet”.

 

In reality, there is no organization or actual structure of “The Internet”, there is only a collection of independently operated networks who happen to use a common protocol and happen to agree on ways to exchange traffic and happen to agree on a common registration system in the form of the RIRs and ICANN.

 

This is useful and convenient, but it carries no force of law and does not have any ability to grant rights or force behaviors. It can, of course, make its issuance or persistence of registrations in its database(s) contingent on compliance with a set of policies or rules set by a process determined by the organizations in question.

 

The internet resources are NOT from the community, they are integers pulled from thin air. The registrations of those resources, on the other hand, are managed in a hierarchical manner and come originally from IANA (a function currently performed by ICANN) to the RIRs and then to LIRs, NIRs, and End Users. Those registrations are entirely under the control of the companies that operate the registries and are entirely subject to the bylaws thereof.

 

If you do not like this, of course you are absolutely free to incorporate your own form of regional internet registry that gets its addresses from whatever source you desire and manages its registration database according to whatever policies your policy process you wish.

 

Crafting the bylaws for such an organization will be very tricky business, but have at it if this is how you wish to spend your time. Another difficulty will be convincing anyone who controls a meaningful router to consider the registrations in your new registry valid, but I leave such things as an exercise for the reader.

 

As a matter of fiduciary responsibility, the board simply cannot ratify the policy as written because it is, quite simply, not rectifying a mistake, but overriding the general structure of corporate governance and moving control of a membership corporation into the hands of an undefined group of people who may or may not actually have any stake in the company. To the best of my knowledge, this is not permitted under the laws of any country that I am aware.

 

Perhaps such a thing is possible in Amsterdam, I don’t know. It is not possible as near as I can tell from my reading of the Companies Act of Mauritius. I’m pretty sure it’s not possible in the US.

 

Owen

 



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