In message <[email protected]>, Owen DeLong <[email protected]> wrote:
>Had AFRINIC stuck to its governing documents as written... Objection your honor! Irrelevant and immaterial. Despite all pretenses to the contrary on the part of Plaintiff, and despite Plaintiff's repeated attempts to introduce extraneous and irrelevant facts and considerations into the present case, at base this case was and remains a relatively straightforward commercial contractual dispute between the parties. This contractual dispute must necessarily be framed through the lens of the AFRINIC Registration Services Agreement (RSA) whose provisions and conditions were mutually agreed and undertaken by both Plaintiff and Defendant, first some eight years ago and again, repeatedly, since that time. Plaintiff attempts to look for something, anything, outside of the four corners of the RSA agreement which might now relieve it of the responsibilities, commitments, and business risks which it knowingly undertook, beginning some eight years ago and continuing to the present time. It is thus little wonder that Plaintiff now attempts to distract the court's attention from the actual and operative contract which lies at the heart of this case with various irrelevances and shiny objects. Although the fundamental, incurable, and essential weaknesses of Plaintiff's case, on both the facts and the law, oblige it now to attempt to argue that the alignment of the stars was in some ways inadequate, this court is obliged to look only to the plain language of the contract that was undertaken, willingly, freely, and without duress, by both parties, and to its express provisions which are explicit in providing remedies in the event of a breach. There has been and remains no factual dispute between the parties with respect to Plaintiff's use of its registered IP address for purposes other than those for which they were originally granted by Defendant. Representatives of Plaintiff have repeatedly and publicly defended Plaintiff's alleged rights to use these IP addresses in any manner which may suit Plaintiff's current business objectives. Although Plaintiff now finds its unambiguous contractual commitments under Sections 4(c)(i), 6(d)(iii) and 6(d)(iv) of the RSA inconvenient to its current business plans, Plaintiff nontheless remains legally bound by those commitments -- commitments which Plaintiff itself freely admits it has violated, and not merely in a de minimis manner, but substantially, materially, and over an extended period of time. The RSA agreement between Plaintiff and Defendant has been in effect for some eight years now. As long as Plaintiff was able to profit from this contractual agreement it voiced no material objection to the various provisions thereof. Nor did it take issue with any of the contract provisions prior to executing the agrement. The apparent fact that Plaintiff failed to take note of the obvious business risks that are inherent and implied by Section 4(c)(i) of the argeeement is not a problem which Defendant can be legally held responsible for, particularly at this late date. It was Plaintiff's responsibility to seek out adequate counsel prior to entering into the RSA agreement with Defendant, particularly if it failed to adequately understand the business risks of such an undertaking. Instead however, Plaintiff has slept on its rights for some eight years and now arrives at this court requesting some judicial relief which lies outside of the four corners of the RSA agreement, as written. But the court is not now obliged to re-write the existing contract at the behest of Plaintiff or in a manner favorable to it. Furthermore, doing so would abrogate many, most, or all of the fundamental tenets of existing contract law. Plaintiff protests that the Board and/or executives of Defendant have in some ways acted outside of their rightful remit and authority in enforcing the plain language of RSA Section 4(c)(i) against Plaintiff, and/or that said Directors and executives are obliged to follow certain internal rules and procedures of Defendant's member-based association before undertaking to enforce provisions of the RSA agreement which was undertaken by Plaintiff. Although it may well be the case that Defendant's Board or executives acted in ways not explicitly sanctioned by Defendant's member-based association at the time, the remedy, to the extent that there is one, lies entirely in the hands of Defendant's own members who may recall and replace any wayward Directors or executives as and when they may feel the need. The members of Defendant may also, by consensus or popular vote, revise or replace existing internal policies and procedures as may best suit their common interests. The *generalized* question of the propriety, or lack thereof, of the actions of Defendant's Board or executives is not before this court. Rather, as noted above, this court is asked to consider only the matter of the contractual dispute between the parties, which must be resolved by looking to the plain language of the RSA. Matters internal to Defendant's member-based association are not ones which this court can, should, or would want to become enmeshed, and there exists ample means within Defendant's association itself to correct any ostensibly improper actions on the part of Defendant's Board or executives. Plaintff asks this court to fashion, presumably out of whole cloth, some extra-contractual remedy for Plaintiff's current contractual predicament, into which it placed itself with eyes wide open. When doing so, Plaintiff makes reference to all manner of allegations relating to the internal policies and procedures of Defendant. What Plaintiff fails to do is to make any reference to any specific provision of the one and only legal agreement that binds the two parties together, i.e. the RSA. Plaintiff does not allege any material breach, or indeed any breach whatsoever, on the part of Defendant with respect the clear terms of the RSA. Nor does Plaintiff call the court's attention to any provision of the RSA which would grant Plaintiff *any* relief in the case of a breach by Defendant, even if there had been any such breach, which there has not been. Rather Plaintiff attempts to play the alchemist, magically transmuting mere allegations of lapses in the internal procedures of Defendant into some alleged but unspecified contractual breach of the RSA by Defendant, even though Plaintiff can point to no specific provision of the RSA which Defendant has breached. Having also found no provision within the RSA which would provide Plaintiff with any relief, even in the unlikely event that Defendant had been in breach of contract, Plaintiff now also urges the court to become an active participant in Plaintiff's alchemy by conjuring up some judicially- manufactured remedy for a purported (but non-existant) contractual breach... a remedy which simply does not exist within the RSA contract as written. Given that there are no open issues of either fact or law in this case, and for all of the foregoing reasons, I now move this court to declare summary judgement in favor of Defendant. The RSA is the one and only controlling contract in this case, and Plaintiff has failed to allege any material breach of any of the provisions of that contract on the part of Defendant, thus rendering Plaintiff's case effectively void. Furthermore even if there had been a breach by Defendant, the plain language of the RSA agreement, which Plaintiff willingly and freely accepted to be bound by, contains *no* provisions for any relief to Plaintiff in case of a breach by Defendant. Thus, even if this court were to find that Defendant somehow breached its responsibilities under the contract, the remedy due to Plaintiff would be nothing other than what Defendant has already attempted to effectuate, i.e. the termination of the contract together with the termination of any and all ongoing responsibilities of the parties to one another, leaving each free to go its separate way without any further vexation by the other. Submitted this day, 1, August, 2021 by your humble servant, Ronald F. Guilmette, Esq. _______________________________________________ Community-Discuss mailing list [email protected] https://lists.afrinic.net/mailman/listinfo/community-discuss
