Board Prerogatives on the PDP
17 September 2020
Jordi Palet Martinez
jordi.palet at theipv6company.com
The IPv6 Company
CPM art 3.0
1. Summary of the problem being addressed by this proposal
AFRINIC PDP provides a conflict resolution via the Appeal Committee which is appointed by the Board. However, there is no indication of the need for any procedure or “Terms of Reference” for that committee.
The actual Terms of Reference, haven’t been developed by the community, despite they are restricting the community rights according to the PDP and creating clear discrimination for authors or proposals appealing a co-chairs decision.
The Terms of Reference have two well-defined parts: a) Composition and selection of the members, and b) Working methods.
While it is correct that the board defines how the members are selected, as this is a clear prerogative of the Board, following the PDP (“… the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors”), the PDP doesn’t give to the Board prerogatives on how that committee should work, which is something clearly and exclusively sovereignty of the community.
Also, the “working methods” enter into details such as “conflict of interest”, which clearly belong to the composition and selection of the committee and furthermore, set new conditions which are restrictive interpretations of the PDP. For example, in several parts of the process the word “other” has been included, while the PDP explicitly says “An appeal can only be filed if it is supported by three (3) persons from the Working Group who have participated in the discussions”.
Is not only that this “other” wording changes the PDP unequivocal interpretation, creating a clear restriction of proposal authors rights, which discriminate them against the rest of the community, but also changes the meaning of Consensus on which the PDP is based. Authors could be the only part of the community that defend a proposal, because, for example, the rest of the community participants ignore the proposal, even if they agree on it, or express an “I don’t like it”, but don’t provide a valid rational justification against the proposal.
In addition to that, considering the low participation of the community in the discussions, in many situations it may happen that even if people are in favour of a proposal, they don’t express it, and again negative opinions are just opinions, not justified objections.
Basically, the problem can be summarised as that the board and/or the committees do not have the right to behave against the PDP, even if it is only in a matter of interpretation, and consequently, they can only change the PDP thru the PDP itself, with an exceptional provision set by the AFRINIC bylaws:
“11.4 Notwithstanding, the provisions of Article 11.2 the Board may adopt such policies regarding the management of internet number resources where it considers that the same is necessary and urgent, having regard to the proper and responsible usage of these resources.
11.5 Endorsement of a policy adopted by the Board:
- Any policy adopted by the Board under the provisions of Article11.4 shall be submitted to the community for endorsement at the next public policy meeting.
- In the event that such a policy submitted by the Board is not endorsed, the said policy shall not be enforced or implemented following its non-endorsement; however, any action taken in terms of the policy prior to such non-endorsement shall remain valid.”
This text has two clear and very relevant aspects:
- It only authorizes the Board (not the Committees), to adopt policies regarding the management of Internet number resources, NOT to modify or re-interpret the PDP itself.
- Any policy adopted by the board in case of necessary and urgent need should be endorsed by the community at the next PPM.
As it can be easily observed, the Appeal Committee Terms of Reference, have never been introduced as a policy, never linked in any way to the CPM, and consequently, they have never been endorsed by the community.
It is clear that this is a continued and persistent aggression to the PDP, and can’t be accepted by the community, as it also constitutes a clear violation of the ICANN ICP-2.
2. Summary of how this proposal addresses the problem
It should be clarified that the examples on the previous section, are a concrete situation, but this proposal tries to avoid this problem being repeated in the future, by ensuring that the Board and Committees prerogatives are well delimited.
This proposal adds a new section, at the end of the current PDP, in order to clarify what are the limits of the Board and resolve existing breaches of the PDP and related procedures, in consonance the with bylaws and the community sovereignty, on top of the Board decisions itself.
3.1 Amending Section 3.0 of the CPM, as follows:
Text to be added after the actual “Conflict Resolution” section.
3.6 Board Prerogatives
The AFRINIC Board or Committees can’t amend or re-interpret the CPM, including the PDP, and even less, restrict the rights of any community member, following the Consensus and Bottom-Up approach, as set by the PDP.
In exceptional situations, duly justified, the Board may define temporary procedures or policy changes, which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal. Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus.
3.6.1 Temporary Provisions
When this policy reaches consensus, any existing relevant Board or Committees processes or policies will automatically decay and can only be re-introduced as a draft policy proposal.
In other RIRs, this situation didn’t happen. The board or committees haven’t modified the PDP in any similar fashion as it happened here.
In LACNIC and RIPE, the appeal can be done by a single community member, without the need for any further community support.
In ARIN, the equivalent to the appeal process (petition process) requires support from 10 individuals (including those that initiated the petition, but they should be from 10 different organizations).
None of those RIRs has “additional” processes (generated by the board and not the community) which aren’t part of the PDP itself. APNIC doesn’t have an explicit appeal process.
|17 September 2020||Version 2: AFPUB-2020-GEN-004-DRAFT02
- Addressed objection from the chairs
13 August 2020
Version 1: AFPUB-2020-GEN-004-DRAFT01
AFRINIC Policy Impact Assessment
AFRINIC Staff Assessment
|Date of Assessment||Relevant to Proposal|
|4 Nov 2020||AFPUB-2020-GEN-004-DRAFT02|
1.0 Staff Interpretation and Understanding of the Proposal
This policy proposal aims at updating Section 3 of the Consolidated Policy Manual with a new section that explains the limits of the Board in the Policy Development Process. There is no impact on AFRINIC systems and operations. However, we foresee an impact on the functioning of the AFRINIC Board in the PDP.
2.0 Legal Assessment
In regard to Section 3.5 of the CPM, admittedly there is a procedure for 'conflict resolution' but in so far as it relates to the development of resource management.
Section 3.5 of the CPM also provides for an Appeal Committee that is appointed by the AFRINIC Board of Directors.
Consistent with Section 3.5 of the CPM, it is apposite to recall that there is already an Appeal Committee duly set up by the Board of Directors, and it is the Board of Directors who determine the ToRs of the Appeal Committee and the said ToRs have even been published for the benefits of the Community at large. See https://afrinic.net/policy/appeal-committee#tor. Thus, it goes without saying that the "appointing body" always determines the ToRs for the "appointed body". To act otherwise would only create havoc and unnecessary conflicts between the existing Section 3.5 and the newly proposed Sections 3.6 & 3.6.1.
Coming back to the proposal, and after having perused both the problem statement as well as the actual proposal, no-where can it be inferred that the author is making a motion/proposal to amend Section 3.5 of the CPM so that the Appeal Committee is no longer appointed by the Board of Directors. Nor does the author seem to be proposing an amendment to the existing general 'conflict resolution' framework.
Besides, this proposal contains nothing regarding what the Appeal Committee's ToRs ought to be. Even if the current ToRs needed to be reviewed, it would be a matter for the Board of Directors to determine in accordance with its general powers provided in Article 3.4 of the Bylaws; and it is worth noting that despite its prerogative powers, the Board has both in the years 2017 and 2020 acted in consultation with its Community when it caused the said ToR to be reviewed so that the good faith of the Board of Directors cannot be challenged.
Instead, and while the author seems to have no issue whatsoever with the existing provisions of Section 3.5, he is proposing to add new sections i.e. 3.6 and 3.6.1 that relate to the prerogatives of the Board of Directors.
In light of the above, therefore, it may reasonably be viewed that the proposed policy is akin to an encroachment on the powers of the Board of Directors.
One should also recall that the Board of Directors is already legally bound to act in accordance with the provisions of the Mauritian Companies Act and AFRINIC Bylaws so that there is no such real need or justification for the CPM to provide such guidance to the Board of Directors on how it should exercise its discretionary powers. Be it as it may, it is clear that the development of the resource policies is a matter for the PDWG and that the Board's power in regard to IP management is very limited to the extent that it can only perform the following:
- Call a Public Policy Meeting, despite the proceedings, are led by the PDWG;
- Set up an Appeal Committee whose responsibility is to conduct an independent review of the whole process that the PDWG has followed pertaining to a particular proposed policy;
- Set up a Recall Committee whenever one is required;
- Apply/trigger Section 11.4 of the Bylaws, but only in cases of urgency and justified exceptional circumstances; and
- Determine whether a policy that has gained 'consensus' ought to be ratified.
In the circumstances, any apprehension to the effect that the Board is acting or has acted against the PDP is misconceived, unless backed with valid evidence.
Moreover, in regard to the newly proposed Section 3.6.1, one may also reasonably find that the proposal as drafted/presented lacks the essential element of certainty, more so it contains the following - "any existing relevant Board or Committees processes or policies will automatically decay and can only be re-introduced as a draft policy proposal". Whilst it is not appropriate to draw unnecessary inference and/or extrapolate on the wordings used by the author, it is therefore highly recommended that the relevant author be requested to clarify such ambiguity so as to avoid all possible conflicting provisions in the CPM.
In the light of the legal assessment above and 1.some clauses in the proposal, some clarifications are being requested from the author of the proposal as follows:-
1. According to Section 3.6.1 of the proposal, "3.6.1 Temporary Provisions - When this policy reaches consensus, any existing relevant Board or Committees processes or policies will automatically decay and can only be re-introduced as a draft policy proposal."
What does the above statement mean? Can the author clearly detail the different elements that are expected to decay when the proposal reaches consensus?
2. Moreover, staff also noted the Amendment of 3.6.1 by removing "As an exception of the preceding paragraph, in the absence of elections processes for aspects related to the PDP (co-chairs, appeal committee), those aspects will be still handled by the board in consultation with the community. However, this is also a temporary measure and also specific draft policy proposals should be introduced for that." which was present in version 1 of the proposal.
Was the impact of the removal of the above clause on "any existing relevant Board or Committees processes or policies will automatically decay and can only be re-introduced as a draft policy proposal." assessed by the author, community and co-chairs. Should there be any active Board or Committee processes or policies at the moment, staff understanding is that these will automatically decay, even if in use as the proposal as written does not provide a transition phase. Staff noted that the Terms of Reference of the Appeal Committee was mentioned as a concrete example in the proposal and should the author confirm that it will be impacted, You may refer to the implementation concerns section below as seen by staff. An assessment on the appointment of a recall committee is also documented there.
3. The author mentions in Section 3.6 "In exceptional situations, duly justified, the Board may define temporary procedures or policy changes, which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal. Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus."
AFRINIC staff would like to comment that Section 6 - Varying the process of the CPM is not applicable to the Board enacting Sections 11.4 & 11.5 of the Bylaws.
https://lists.afrinic.net/pipermail/rpd/2010/001091.html provides an outline of how the Policy Development Process in the AFRINIC service region (AFPUB-2010-GEN-005) works. This policy is reflected in Section 3 of the CPM.
We will appreciate if the authors explain as to how Section 6 of the CPM is applicable.
3.0 Implementation Concerns
A. On a more practical note, since the current AFRINIC PDP landscape, has shown a high number of appeals since AFRINIC-32 in September 2020 and The Terms of Reference (ToR) of the Appeal Committee (AC) have been mentioned in the problem statement of the proposal. While they do not figure in the CPM, they are used by the AC to assess the appeals lodged against co-chairs decisions. Taking into consideration that this proposal as written reached consensus as per the emails from co-chairs <https://lists.afrinic.net/pipermail/rpd/2020/011630.html>, staff interpretation is that the Appeal Committee Terms of Reference which was mentioned as a concrete situation in Section 2 of the proposal will decay as per Clause 3.6.1 of this policy. (unless the author mentions otherwise in the clarification request).
Taking into consideration that the AC is currently assessing five appeals lodged after the conclusion of the AFRINIC-32 PPM in September 2020 and the process is still ongoing - a possible impact after consensus declaration and ratification of this policy draft as written is best explained as follows (in the absence of transition clauses in the current proposal):
- The policy reaches consensus
- The proposal is sent to Board and is ratified
- Staff implement - can be immediate
- ToR of AC immediately decays (when the policy reaches consensus)
- AC still assessing the five appeals that were lodged – but ToR has in the meantime decayed hence unusable. the 5 appeals get suspended until such time a ToR is established (AC is appointed by Board)
- If the situation is deemed to be urgent and justified exceptional circumstances, then the Board can enact according to Section 11.4 of the Bylaws by proposing the ToR as an adopted policy and included in the CPM
- AC continues assessing the five appeals that were lodged
- Board submits the adopted policy for endorsement at the next public policy meeting.
- In the event that such a policy submitted by the Board is not endorsed, the said policy shall not be enforced or implemented following its non-endorsement; however, any action taken in terms of the policy prior to such non-endorsement shall remain valid. This will result in an appeal committee nominated by the Board with no terms of reference, hence the inability to assess any appeals lodged after co-chairs announce their decisions of policy discussions at the next PPM.
- Step 6 onwards used by the Board.
Can the author confirm which section of the proposal mitigates the risk of the above concerns and maintain a stable environment for conflict resolution?
4.0 Financial Impact
5.0 Comments from the Mailing List
Staff also took note of the author's response on the rpd list after consensus was declared on this policy proposal -
https://lists.afrinic.net/pipermail/rpd/2020/011579.html - "This proposal is ensuring that the PDP explicitly authorise the board to do what the bylaws already say, not contradicting them."
https://lists.afrinic.net/pipermail/rpd/2020/011899.html - "It is very well explained in the proposal and if you read the bylaws you will see that this proposal is not contradicting it, on the other way around. The bylaws already said that, but the PDP not. So, making them in-sync is the right thing to do.
https://lists.afrinic.net/pipermail/rpd/2020/011935.html - "The PDP is responsible for everything regarding the PDP itself and the establishment of policies. The PDP is responsible for the WG, the chairs, the appeals, and more.
Section 3.5 of the PDP states that the board will appoint the Appeal Committee, it doesn’t say anything that the board should make a ToR, which is a way to *modify* the PDP because the actual ToR has contradictory interpretations of the PDP."
"The temporary provisions of this proposal (3.6.1.) only say that the ToR will decay, but not the Appeal Committee itself. The ToR is not needed. Again: The AC should just follow what is defined in the PDP to do their job, nothing else. Look at the previous appeal, and we will see also the results of the current ones."There are lots of details in the ToR which *aren’t in the PDP*. They are made up, without the PDP process consensus process. It is unacceptable.
In the light of the above and taking note that the proposal has reached a consensus, the proposed Sections 3.6 & 3.6.1 as written do not make the CPM and bylaws in-sync and have not taken into consideration the immediate impact of the decay of ToR of the AC.
If the alignment of the CPM and Bylaws in terms of the Board prerogatives is the problem to be solved, a better formulation of the problem statement and proposed additions to the CPM in the proposal would be the best approach. ' Since the author seems to have an issue with the Board determining the ToRs of the Appeal Committee, he may consider proposing an amendment to the existing Section 3.5 so that members of the Appeal Committee be elected in the same manner as the PDWG Co-Chairs and that the ToRs could henceforth be proposed and determined by the Community.
A self-managed PDP will automatically allow the Board to propose policies in accordance with Sections 11.4 & 11.5 of the Bylaws and intervene where the CPM requires it, e.g at policy ratification.
In accordance with Section 3.4 of the CPM, AFRINIC will provide administrative support and assist the author(s) in drafting the proposal if requested.
If the bylaws have to align with the CPM, this is only possible if they are reviewed and AFRINIC has recently concluded the bylaws review and at the time of consultation, these issues had not been brought up. Any amendment to the bylaws will require at least 75% of the votes of the Resource Members attending and participating in a Members' Meeting.