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

[Owen DeLong]

> On Aug 5, 2021, at 01:27 , JORDI PALET MARTINEZ via RPD <rpd at afrinic.net> wrote:

> 

> 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).


This is a distinction without a difference in this context.

The bottom line is that policy cannot override the bylaws, it is completely the other way around.
 

> 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).


Sure, but in this case, the law doesn’t invalidate any of the bylaws, but it does preclude the board from being able to ratify a policy which usurps the bylaws in favor of community developed policy, whether in whole or in part.
 

> 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.


You already have multiple problems:

1.	The community of the RIR is not the owners. It is anyone with an email address and an opinion
	they choose to share.

2.	The owners of the RIR are not the community, they are the members.

3.	It’s not particularly relevant whose opinion a community member chooses to express in a forum
	so long as they are transparent about their affiliations and are willing to represent that opinon
	as their own. Presumably someone would not do so with an opinion they do not share, but
	even if they do, they are free to do so.

>  

> 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.


But there is an inherent territorial nature to houses and land as physical objects that does not apply
to internet number resources. A contiguous network that spans multiple continents and operates
a backbone should not be forced to have 5 different sets of non-contiguous numbers that it
advertises regionally simply to satisfy some artifice of construction of the RIR system.

Fortunately, the above is not the case, no matter how much AFRINIC wishes to pretend it is so.
 

> 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.


ICANN/IANA is not an umbrella. It is merely the central free pool from which the RIRs
replenish their free pools when they run low. Indeed, ICANN performs their IANA
functions with regard to number resources entirely according to policies set by
unanimous agreement of the RIRs.

>  

> 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).


OK… I can see the legitimacy of this portion of your overly tortured analogy.
 

> 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.


OK.
 

> 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.


Here’s where you run off the rails again. The setup of the rules in this case isn’t limited to the 125 owners. The 125 owners have control of the bylaws.

The rules (policies) you are talking about, OTOH, are controlled by anyone who contacts the administrator of the community list and chooses to speak, regardless of where they live or any ownership status or anything else.
 

> 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.


If the bylaws of the organization in question give them these rights, then the only way to take them away would be for the owners in question to amend the bylaws. The community policy is not superior to the bylaws in this context, just as it is not superior in the context of AFRINIC.
 

> 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.


Now you are conflating community and membership in a way that destroys your analogy and breaks any relevance to this discussion.
 

> 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.


Yes… The owners can amend the bylaws to rectify the situation. The community, on the other hand, cannot effectively seek to modify the bylaws through the PDP.
 

> 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.


The term participants is vague and misleading here… Do you mean community or members? Which rules are you amending? The bylaws which have force of law to govern the actions of the organization representing the 5 owners who have developed these objectionable rules in their bylaws, or, the policies which have no force of law and are under control of the community, not the members? If you want to change the bylaws, then you need the owners (members) and you have to do it through a motion at the members (owners) meeting. You can’t change the bylaws according to the will of the community through a PDP action.


> Stop using that organization and creating another one that follows the community rules.


Sure, but to replace AFRINIC, you’d need to spin up a new organization, define its bylaws and its shareholders (members), etc. The shareholders would have control of the bylaws and be able to modify them. If you wanted to then create a policy process and community that can participate in said process, you are free to do so or not.


> 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.


I agree here. Noah is the one arguing that the board can’t make an emergency policy.


> Keeping the bylaws as they are, but at the same time, granting that right to that as in 3 above.


Can’t parse this into any useful meaning, so please try again.
 

> 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).


You keep using this term participant as if it has meaning, but it is ambiguous and could refer to either or both of two distinct groups of participants that have been discussed above. There is the community (which does not imply any inherent ownership stake in the organization) and there is the membership (the actual owners).

The membership has the right to modify the bylaws which govern the organization’s conduct and short of any conflict with the laws of a superior jurisdiction (e.g. town, state, nation, etc.) are the supreme law of the corporation. The community is granted (through the bylaws) the right to participate in the PDP and modify policies that govern how the organization assigns house numbers to the houses, but those policies cannot modify or supersede the bylaws control of the operation of the organization itself.


> 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.


Sure.
 

> 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.


Hopefully one of the many lawyers on this list will provide clarity at some point.
 

> 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.


Tread carefully here… I think if you dig deep enough, you will find that the “community” that actually has the power to do so is 5 men and that it requires unanimous consent of all 5.
 

> 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.


Well… Let’s talk a look:

AFRINIC:
	Emergency policy process granted to the board entirely. Community to review at next meeting and may reject.
	Policy actions in the interim stand, even if policy is rejected.

APNIC
	Unclear… The entire APNIC policy development process documentation is very hand-wavy and there is no clear
	single PDP document I could find.

ARIN
	Emergency policy process granted to the board entirely. (https://www.arin.net/participate/policy/pdp/)
	14-day PPML discussion (equivalent to rpd list)
	AC review and recommendation within 7 days
	Board decision thereafter
	If adopted, reviewed at next PPM for reconsideration.

	Emergency policy suspension process completely under board control
		Board suspends policy, refers to AC for recommendation.
		AC publishes recommendation for 14+ day discussion on PPML
		If suspended, presented at next PPM
	

LACNIC
	Community based Expedited policy process. Board has no authority to enact policy. (https://www.lacnic.net/679/2/lacnic/)
	No authority granted to board with regard to policies in their bylaws: https://www.lacnic.net/244/2/lacnic/chapter-v---board-of-directors-electoral-commission-and-fiscal-commission

RIPE-NCC
	No expedited process specified in RIPE-NCC PDP (https://www.ripe.net/publications/docs/ripe-642)
	RIPE NCC Articles of Association (equivalent to bylaws) (https://www.ripe.net/publications/docs/ripe-752)
	No policy powers granted to the board in the AoA.

So, it seems that AFRINIC and ARIN are the only RIRs that grant clear emergency powers to the board.
 

> 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.


Continuing to claim this doesn’t make it so. (The word I think you mean is “hijacked”).

Any ability of the board to act or not is granted to it in the bylaws and is granted by the members.

Any ability of the corporation to act is granted to it by the board and therefore subject to the bylaws.

Any community powers must be granted to said community in some defined way through some legal instrument.
 

> 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.


I think we can, in good faith, agree to disagree about this. There is nothing diabolical in my attempting to explain the actual corporate structure to you, nor is there anything diabolical in the idea that the bylaws (which are specifically under the control of the ownership of the organization, i.e. the registered and resource members acting jointly) and not the community cannot be amended, overridden, or even usefully recognized by the community through the PDP.

Owen

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