[rpd] Last Call -Update of PDP AFPUB-2021-GEN-002-DRAFT03

Wed Jul 13 13:01:58 UTC 2022

Dear PDWG,
Hope this email finds you in good health!
Please see my comments below, inline...
Thanks.

Le mardi 12 juillet 2022, Owen DeLong <owen at delong.com> a écrit :

>
>
> On Jul 7, 2022, at 12:20 , Sylvain Baya <abscoco at gmail.com> wrote:
>
> Dear PDWG,
>
> Hope this email finds you in good health!
>
> Please see my comments below, inline...
> Thanks.
>
> Le lundi 4 juillet 2022, ABDULKARIM OLOYEDE <oloyede.aa at unilorin.edu.ng>
> a écrit :
>
>> Dear All,
>>
>>
>>
> Hi Abdulkarim,
> Thanks for your email, brother!
>
>
>>
>> [...]
>> B "In the event that such Policy Proposal doesn’t reach consensus, it
>> will not be further enforced or implemented, however, any actions taken in
>> terms of the policy up to the non-consensus determination, will remain
>> valid."    I totally disagree with this. This has
>> grievous consequences.  In addition to my objection in 'A' I think this
>> clause makes it worse. How can such a policy stand? On what basis? So what
>> this means is that the board can take an illegal action and it would
>> stand.
>>
>>
>>
>
> ...this comes from the very MU's Company Act [1];
> as you can see below:
>
> <quote>
> [...]
> 141. Validity of director’s acts
>
> The acts of a director shall be valid even
> though -
>
> (a) the director’s appointment was defective;
> or
> (b) the director is not qualified for appointment.
> [...]
> </quote>
> __
> [1]: sourced  from page 113 -
> <https://companies.govmu.org/Documents/legislation/13sept202
> 1/Companies%20Act%202021.pdf>
>
>
> I don’t think that portion of the companies act really applies here,
> however.
>
>
Hi Owen,
Thanks for your email, brother.
Maybe, maybe not! you are entitle to your opinion :-)
...i respect it!

>
> We’re talking about whether to reverse actions taken by staff under policy
> proffered by the board which the community doesn’t affirm.
>
>
>
...i would have missed a thing or two; then, brother :-)

But, looking twice to:

1. the facts: the content of the email from our
brother AK, quoted above, prove the contrary. In
fact, this is what he said: "[...]So what this means
is that the board can take an illegal action and it
would stand.". Judge by yourself, Owen.
2. the context: this portion of the DPP is about the BoD
 within the PDP and it practically tries to copy the
AfriNIC's Bylaws, as explained more times by Jordi...
and discussed long time before the DPP. Owen, you
were part of these discussions, brother :-/

3. the AfriNIC's Bylaws: you would agree that it
allows the AfriNIC's BoD to: (i) submit a DPP, (ii) *exceptionnally direct
the Staff* to do a *special action* not yet allowed by the CPM; even if the
DPP
 they proposed (to cover it) has been rejected by the Policy's Community...

Usually, the Staff acts strictly within a framework constituted by
CPM+RSA+Bylaws+MU's Company Act
(which allow )...your scenario, would only be possible if
 the BoD directs the Staff to act accordingly...imho :-/

...it appears that you used to put words in the mouth of AK, even when its
statement reads contrary :'-(

> That’s to a defective appointment of the director or a situation where a
> director was not qualified for appointment.
>
>
...i understand that the quoted portion of the MU's
Company Act might not be (generally) applicable in
 this context. But couple of raisons to share it here:

* the Bylaws appears to have been inspired by it;
* the very statement of AK called to it; as a legal understanding of the
validity of actions within a BoD of a Company in Mauricius...being it due
to
the invalidity of directors taking separately.
* ...

>
>
> The companies act clause you quoted regards a single director (presumably
> among many). It prevents the automatic unwinding of all board actions that
> occurred while a defective director was present. This is reasonable.
>
>
...i agree to this possible scenario, whereas the
interest of the quoted clause of the Maurician's
Company Act might be to allow collective BoD's decisions to remain valid,
even with a defective
director among.

Though, it's not the sole one. Imagine that the
whole BoD became affected...or it's a BoD with only
a single one [1] director...
__
[1]: <
https://www.dlapiperintelligence.com/goingglobal/corporate/index.html?mc=MU&t=27-minimum-maximum-number-of-directors-shareholders
>

...would it still be applicable?

>
> However, a defective act of the board as determined by the community
> probably should default to being unwound unless the community chooses
> otherwise by consensus.
>
>

 ...here, we are speaking about a rule which already
 exists within the Bylaws...so no risk...because the
BoD is simply allowed to do it, brother.

>
>>
>> [...]
>>
>> 7. Section 3.5  As we have clearly seen now that the Board itself can be
>> part of the controversy. If the board is now allowed to appoint all members
>> of the AC then it is like a judge in its own case.
>> I give you a possible scenario based on this proposal. the board submit a
>> proposal as an emergency, the proposal goes through and some object to it
>> and decide to appeal. then the same board now appoints an appeal committee
>> what do you think would happen to that case? I can give more examples.  We
>> need to be realistic. The  AC should be appointed by the community and
>> it must be a standing committee such that it cannot be reconstituted when an
>> appeal is submitted. that way it would not be a subjective committee.
>>
>>
>>
> Interesting hijacking scenario, brother :'-(
>
>
> It’s not like it’s far fetched under the current circumstances.
>
> Thanks for have pointing it out :-)
>
> Shalom,
> --sb.
>
>
>
>> 8.  I think this proposal needs more work.
>>
>
> Agreed.
>
>
>
Owen, which work is still needed please?

...maybe to replace:

1] PP by DPP
2] PPV by DPPV
3] Chairs by co-Chairs
4] ???

Jordi, please look at it, brother ;-)

Owen, you are agreeing to what AK said, not me :-)

...and, maybe you should preferably point to what's
actually missing? and eventually propose a better
wording :-/

Thanks.

Shalom,
--sb.

>
>
> Owen
>
>
>

-- 

Best Regards !
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