[rpd] Ratified Policy Proposal - AFPUB-2020-GEN-006-DRAFT03 AFRINIC Number Resource Policy Transfer

[Paul Hjul]

I shared Mark Elkins curiosity. Although I was perhaps a little less
optimistic. Then I saw Owen's post and really hoped he was wrong. Being
less optimistic has meant going over the record and putting together this
email. It being a lazy Saturday has meant that this email comes after a
couple of additions to the discussion.

Owen has pointed out that the *AS WRITTEN* policy imposes on the recipient
compliance with AFRINIC policies and to sign an RSA regardless of whether
the recipient is an AFRINIC member or not. I really really really hoped he
was wrong but unfortunately he is not.

There is a difference in the presentation of Draft 3 (which is what has
been ratified) and Draft 2. Draft 2 (
https://afrinic.net/policy/proposals/2020-gen-006-d2#proposal) appears as
follows:

[image: image.png]

The bullets suggest (but an ambiguity arises) that you have 1,2 then 3
under one set of circumstances followed by 4 if 3 was not applicable.
Followed by a general statement that lends itself to being an alternative
to the whole section.

Draft 3 (https://afrinic.net/policy/proposals/2020-gen-006-d3#proposal)
presents the conditions as:

[image: image.png]

Draft 3 contains no indication that the section 3.6 was amended:
[image: image.png]



The PDWG co-chairs in an email provide a different formatting of the text:

[image: image.png]


Even with this formatting (which formatting was not circulated in any last
call. The conditions on the recipient flow as: 1] Will be subject to
AFRINIC policies, then 2] Must sign RSA, 3] IF not holding resources; 4]
ELSE, 5] IF
1 and 2 are not indicated as conditional and nothing in 5 gives any
indication of suppressing the application of 1 - 4.

Therefore while "the full text provides necessary context" it doesn't
provide clarity. To get clarity you have to dig further and when we dig
further the clarity that comes up is not good for the PDP.

I understand that Gregoire is attempting to convey that Owen is wrong and
that the intent of the final point is to act as an alternative to the
earlier points but this is not the most logical understanding of the text.
The fact that the as written text produces an absurd policy that creates a
massive problem for the organization doesn't mean that the text can be
magically changed. At best it means the policy will be ignored or that a
judicial authority will step in (and there are good reasons to assume that
they won't).

The phrase "the counterpart's RIR transfer policy" does not make sense to
me. The term arises undoubtedly from the idea that other RIRs are
counterparts to AFRINIC but there is nothing contractual (or at least there
shouldn't be ...) involving AFRINIC the recipient, the source and another
RIR in the transfer process. But putting that to one side its clear that
both AFRINIC and another RIR transfer policy will give rise to conditions.
This creates a mess.

The real problem is the presumption that the recipient as a resource holder
is under an RIR and that resource holders are in one region in the divided
up world.. RIR service regions aren't a domicile or jurisdiction. I think
the M word will start getting thrown around several gaskets blown when talk
of carving up the market into regions with an enterprise controlling the
market in their agreed upon region.

It is difficult to say that a policy has "rough consensus" if there isn't
agreement as to what a policy means or if the meaning is vague or
ambiguous. As written draft 3 imposes on the recipient (whoever they may
be) the

It is worth noting that "Must sign RSA" doesn't specify which RSA, A major
opportunity for problems arises if a host of conflicting contractual
instruments are produced and I am quite sure that the A in RSA is for
agreement. Does the policy act to mandate entering into an agreement by
which supply of services are collusively controlled? Lets hope not, and
lets really hope that it can't be argued persuasively that that is what is
happening.

It is also worth noting that *as written* the policy causes the resources
to be "marked". Presumably once marked the resources will be the subject of
further unstated policy prescriptions as may be promulgated. Nothing in the
policy assures continued grandfathering in respect of "legacy".
I don't understand why anybody who has "legacy" would "transfer" those
resources into AFRINIC under this policy. The policy causes the resource
... I suspect that the authors of the policy (and probably AFRINIC staff)
are harbouring the assumption that an AFRINIC member cannot also hold
legacy resources or be a resource holder with resources within the
administrative ambit of different RIRs. The staff assessment correctly
identifies this problem:
"It is important to highlight that, as a matter of law, legacy resource
holders existing within the AFRINIC’s service region are not contractually
bound by AFRINIC’s adopted policies such that these policies have no direct
effect on legacy resource holders, and it is up to those legacy-holders to
adhere to AFRINIC’s policies. Thus, the authors should bear in mind that
obligations impacting legacy resource holders may not necessarily achieve
the intended results if the legacy resource holders refuse to opt for
voluntary registration of the transfer with AFRINIC."

Looking at it from the perspective of a legacy resource holder the idea of
this sort of divide up and marking would raise eyebrows. I suspect that an
attempt to mute objections to the policy from legacy resource holders while
avoiding a proper grandfathering in is what is attempted but the overall
"solution" is probably not the outcome anybody was banking on.

Now the best case scenario is to assume that the staff assessment's
proposition of law is correct and that legacy resource holders aren't given
an RSA to sign but the policy does not address the issue and you have
legacy resource holders who do enter into an RSA for other resources. This
policy demands the signing of an RSA. It is a little more than a bit
absurd.

I don't know if the ratification by the Board proves anything about the
Board at all (so at least Owen is in my view wrong about one
thing, unfortunately its a minor one and not what I was hoping he was wrong
about when I took a dive into this). Ratification is on the advise of the
PDWG and staff and if the Board refuses to ratify when given advise that
the policy is order and after it has been vetted for implementation by
staff it would be quite a tall order for the Board to refuse and with the
documentation which would have been placed in front of the Board I don't
think they or the Receiver had any basis not to ratify. This is
particularly because of the language of the CPM (as at version 1.3) at
3.4.4 "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 do not see real scope for
reconsideration by the Board on their own volition. For the Board to act
beyond being a rubber stamp requires reliance on the bylaws 11.4 as amended
in 2020 [and that is assuming that 11.4 survives scrutiny] although in
light of what will follow it might be necessary for the Board to consider
an emergency measure.

Now for the reasons I have set out the Board probably should revoke the
ratification (although to be honest I am not entirely sure that such a
power exists) or at least should not oppose the legal challenge which
appears (https://afrinic.net/court-cases) to have been brought by
Skyconnect in SC/COM/PWS/132/2026 [plaint challenging the Board's
ratification of the transfer policy] to the ratification. It will be most
problematic if AFRINIC expends resources on a policy that is dead on
arrival or worse introduces problems for the organization *as written. *If
the authors want the document defended then they can instruct solicitors in
Mauritius.

The process manual is clear that "No change can be made to a draft policy
within one week of the meeting. This is so that a stable version of the
draft policy can be considered at the meeting" . At PPM 34 (
https://afrinic.net/policy/development-working-group/ppm-afrinic-34) draft
2 was under discussion. The discussion was dominated by defensive posture
of the authors and editorial changes desired by staff. Rough consensus was
declared on a commitment to editorial changes.

I don't see how you can have a version change of the document submitted
after the PPM presumed to find rough consensus is held. This point was
raised in the discussion by Jordi and I cautioned as to handling the
situation in light of discussions of other conflicting policies that were
ongoing. Be that as it may substance rather than form should be looked at.
You could have a situation where a substantive and informed discussion on a
3rd draft produces actual consensus that is more coherent than the rough
consensus in the 2nd draft.

However what clearly happened is that version 3 was not circulated and
discussed upon during last call and only an email (
https://lists.afrinic.net/pipermail/rpd/2021/014054.html) containing a link
to version 3 was sent as "Summary of Proposal". I am not sure that such a
summary can really be considered as an announcement but for present
purposes it doesn't matter CPM 3.4.2 requires a distinct announcement of
last call because even if it is accepted that the PDWG was in last call
between 8th December 2021 and 5th January 2022 the document presented to
PDWG gave no indication of the change to 3.6. More importantly the entirety
of the discussion in 2022 (
https://lists.afrinic.net/pipermail/rpd/2022/date.html) (and the discussion
from the date of the PPM) was in respect of version 2. There is not a
single email outside of the co-chairs touching on version 3. There is also
concurrent discussion on the withdrawn competing policy proposal and that
discussion has not be absorbed into the consensus assessment of this policy
proposal.


If the AFRINIC staff responsible for enforcement of the code of conduct
were committed to fair application that code they would take steps to
address the clear and egregious misconduct of the authors of this policy
proposal who have acted in bad faith and contrary to the effort to find
solutions to problems. Owen's statement that "board remains capable of
absurdity" is not one I agree with but its well within the bounds of civic
discourse. The policy as ratified is absurd. The false accusation by one of
the authors of the policy should result in the organisation doing the
homework of walking through the adoption process.

As I have confidence in the integrity of Dr Vincent Ngundi and Darwin Da
Costa (the co-chairs) I expect that on being presented with clear evidence
that the presumed rough consensus that they will take appropriate and
prudent steps to guard the PDP from being brought into further disrepute. I
hope I am not wrong on this point.

In my view this particular policy proposal was a good faith effort by the
PDWG co-chairs to get manifestly incompatible efforts to dictate policy
into a single policy document but that unfortunately in the exercise of
doing so a gremlin slipped through the cracks. What Owen has pointed out -
and Mark sitting in anticipation as to "how this becomes implemented" -
requires the PDWG co-chairs to do something. I am acutely aware of there
existence of pressure to get an inter-RIR transfer policy and the
ideological hunting grounds which this policy has landed in. The worry
though is some years down the line and the need for a defensible and sound
policy has only grown.This policy proposal was moved forward with
amendments as other conflicting policy proposals timed out. The absence of
an inter-RIR transfer policy was raising issues surrounding
whether AFRINIC or the RIRs more broadly are operating such that the M word
should be thrown about. And the as ratified proposal probably should see
the M word being thrown about but it really should be getting some thought
about related questions of collusive agreements and the like.

Mike Silber strenuously disagreed with the contention that RIRs without an
intra-RIR transfer policy would be a *de facto* monopoly and asserted that
people were arguing beyond their scope of knowledge. When it comes to the
field of competition law and policy everybody invariably steps a little bit
out of their lane because of the interplay with economics, People involved
in the Internet and telco space seem to really get quite religious about
the M word. Of course competition considerations are broader than whether
something is a monopoly. Now I've publicly taken the stand that in terms of
design the RIRs, particularly AFRINIC does not fall within the general
remit of Mauritius competition law or of any other competent
jurisdiction's competition law (and by competence here I am referring of
course to whether the jurisdictions law can legitimately find application
rather than a comment on the jurisdiction or its judicial officers, lest
somebody mischievously steps in on the word "competence", although there
are conceivable circumstances where a possible cause outside Mauritius
could arise) but both that there are circumstances in which a competition
issue could arise and that the broad concept of promoting a competitive
ecosystem should be a factor in decision making. Moreover, Mauritius is not
in the European Union (or notwithstanding Brexit the United Kingdom - now
through Statutory Instruments and using its own CMA) and so the Pavlov
doctrine is not applicable and so arguing that AFRINICis an "undertaking"
or more importantly an "enterprise" is a hard ask. I do think that
if AFRINIC was in a country subject to the Treaty on the Functioning of the
European Union a whole host of complexity would arise but ultimately that
one of the 101(3) based block exemptions would apply [I don't feel like
diving into my course and study notes on block exemptions beyond the TTBER
as the nightmares for preparing for the exam Competition law and technology
transfer haven't yet abated]. I actually followed up with the Mauritian
authorities (and published to the Community Mailing List) on the matter and
the response affirmed what I had said and contradicted the attempted spin
from AFRINIC staff. I am of the view that the definition of "enterprise"
(in Mauritius) which requires "engaged in commercial activities for gain or
reward" is dispositive so long as AFRINIC is able to demonstrate that it is
properly operating as a non-commercial entity that is not-for-profit.
However a given RSA could be held to be within the scope of Section 41 or
Section 44 (and thereby Section 41) of the Mauritius Competition Act of
2007 (as amended) does not depend on an enterprise being identified. if it
can be shown that the RSA is an "agreement" which "significantly prevents,
restricts or distorts competition" that agreement can be nullified by
statute. Therefore an intentional policy that obliges a commercial entity
to enter into an agreement which has the object or effect of restricting
the acquisition of services by any person and significantly distorts
competition puts you in a dangerous space. It is honestly a significant
failing that within the staff assessment the legal assessment contains no
indication of consideration of the Competition Act. You are welcome to
argue (wrongly) that there are no concerns touching of the Competition Act
but in light of what was discussed in the mailing lists the staff
assessment is incomplete with this wrong position not being stated. In my
view that this point alone necessitates a review of the action of the
applicable staff who advised the Board to ratify. Also Mike was quite ready
to point out that "ICP-2 no longer has any status" (
https://lists.afrinic.net/pipermail/rpd/2022/014296.html) and well that has
definitely changed - exactly what the status of ICP-2 with the revision is
is a lot more complicated. Moreover ICANN are now a party in winding up
proceedings (Crystal Web's stance on the winding up of AFRINIC is on
record) and I think they are very much taking on the role of supervising
compliance to assure the Supreme Court that it is not in the interests of
justice to wind up AFRINIC. So even without invoking the mighty M word
there are clearly reasons to consider the competition dynamics and aspects
of the registry system and the role the RIRs are playing.

As written the policy holds that a "recipient" is subject both to AFRINIC
policies (including any policy which is restrictive or materially hinders
competition) and that they "must sign" a resource services agreement (which
agreement would be void if it is held to be a collusive horizontal
agreement) coupled with a sharing of commercial plans. Moreover the
recipient is agreeing to adhere to further conditions imposed by a
"counterpart" that being another RIR. It frankly does not matter whether
somebody wants the policy to mean that the conditions of the recipient are
different (rather than cumulative) if the recipient "is in another region".
Moreover the "in another region" language presents its own major problem. A
multinational resource holder would be in Africa and Europe, if such entity
transfers resources to their European operation is the presence of the
entity in Africa of relevance. Equally if an Australian company is the
recipient of resources which it uses in African operations the phrase used
ties those resources to two sets of policies... What of an African company
(incorporated in an African state) that has significant ultimate beneficial
shareholders in the "other regions"?


If we consider what Ernest Byaruhanga and his henchmen were (and quite
likely are) trying to do it may be the case of cockup before conspiracy but
isn't that half of the idea and this point? Noah's email I think speaks to
the fact that at least one of the authors intends the policy to make the
impositions which Owen has raised as an absurdity. If it is indeed the case
that the co-chairs presumed the agreed to amendments meant one thing and
one of the authors was quite intentionally seeking to slip through
something else well then you've got a problem.

And here is another procedural problem, policy version 3's change from
policy version 2 on the point at hand was not communicated publicly by the
chairs and according to
https://www.afrinic.net/policy/appeal-committee#members there was no appeal
committee in effect at the time the chair's called consensus.

[image: image.png]

Moreover there isn't an PDAC at present. So clearly you have a situation in
which any disregarding of valid technical objections by the co-chairs would
fall through the cracks. Add to this the fact that the policy proposal was
amended to address input from the staff and that there was a body of
discussion on the version 2.

I don't know why the Board in 2022 (while still quorate) did not ratify the
policy but what is clear is that once a Board took office this policy was
put before the Board as if the policy had simply been waiting ratification.


I don't know what the co-chairs of the PDWG should do here. What I do know
is that there is a problem with what was ratified and the authors of the
policy document clearly want to drag the PDP into further disrepute. What I
also know is that they owe Owen an apology. If the PDWG is to be a
"professional and respectful environment is essential to achieving
productive outcomes for the community" then that starts with the co-chairs.
As I've shown it is incorrect to attribute to the Board but it is equally
wrong to claim that an absurdity being ratified is outside the scope of the
PDP when the absurdity is from the PDP.

Considering that same co-chairs had previously muzzled Owen (
https://lists.afrinic.net/pipermail/rpd/2021/013969.html) the situation is
a little worse. The stated grounds for the muzzling was improper and are a
misuse of moderating power. Moreover it is clear that the complaint against
Owen (which was spurious and an abuse of office) by the then CEO of
AFRINIC and it is reasonable to assume that the PDWG was instructed to take
steps against Owen due to the fact that he drew attention to the known
corruption. As he correctly pointed out it is quite difficult to assert
that a statement that there are crooks within an organization is defamatory
especially if the speaker can point to a factual basis.
If Owen was a vindictive character ... Fortunately for the individuals who
are the co-chairs I don't think that he is.
For present purposes though what is clear is that during the critical
period when a discussion on the particulars of the 3rd draft was needed
Owen was excluded from participation this not only means . It further gives
a reasonable apprehension that the co-chairs exhibited bias in their
handling of objections to the draft.

I hope that if indeed the imposition of moderation was communicated by but
not decided by the co-chairs that same will inform the PDWG of the same but
failing that being communicated I am afraid they are responsible for the
misconduct at hand. Even if a person wishes to gloss over the issue the
consequence that the declared consensus is unsustainable cannot be ignored.
What I hope is that the co-chairs reflect on their misconduct, apologise to
both Owen and the PDWG and build on the experience. Then again I might be
wrong and the co-chairs could decide to double down and back the authors of
the impugned policy in which case the problems in the process do
unfortunately become a concern for the Board. Either way I am afraid that
trying to build consensus for the next PPM is going to be a bigger
challenge than it really should be.

On another note from PPM-34 then Proposal 5 "Policy Compliance Dashboard -
Policy Proposal" reached consensus but does not appear to have moved on. I
was supportive of this policy with an amendment and I really don't know why
it hasn't moved further into planned implementation. If anything that
policy with amendments was more ready for ratification than the transfer
policy.

Paul
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