I took the liberty of reformatting the message into a consistent font and size.


> On Sep 9, 2019, at 02:41 , JORDI PALET MARTINEZ <jordi.pa...@consulintel.es> 
> wrote:
> 
> Hi Owen,
>  
>  
> El 27/8/19 8:15, "Owen DeLong" <o...@delong.com <mailto:o...@delong.com>> 
> escribió:
>  
>  
> 
> 
>> On Aug 26, 2019, at 03:05 , JORDI PALET MARTINEZ <jordi.pa...@consulintel.es 
>> <mailto:jordi.pa...@consulintel.es>> wrote:
>>  
>> Hi Javed,
>>  
>> I don’t agree, let me explain why.
>>  
>> The current process only talks about the meeting and the chairs have clearly 
>> indicated that they take in consideration the list and the confer. Anyone 
>> from the community that dislikes a consensus/non-consensus decision, could 
>> create a trouble even in courts, because we are accepting consensus from 
>> sources not documented in the PDP. Rewording it resolves the problem.
>>  
>> Furthermore, the current process has not an “in-process” appeal procces. 
>> This will be ilegal in may legislations (may be only the AU applies, but 
>> considering that the community is “the entire Internet”, may be this may be 
>> declared illegal in another country where a member decides to claim for). 
>> The only way (actually) to appeal, will be going to the courts. We should 
>> not aim to that. We should have an internal way.
>  
> While there is no appeal process, there are sufficient iterations of approval 
> and ratification in the current process that I am not convinced an appeal 
> process is necessary.
>  
> I don’t agree on that. If today chairs decide that something is out-of-scope, 
> nobody has a way to change that decision. There is no way the community will 
> be able to discuss the policy proposal as a “policy proposal”, because the 
> chairs don’t accept it.

Is there any history of the chairs determining that something was out of scope 
erroneously? To the best of my knowledge, this is not the case in the APNIC 
region.
 
> In the case of ARIN, there is a kind of appeal process with is the “petition 
> process”. Here we don’t have that. And is the only region where we don’t have 
> that.

Yes, and not once has that appeal process successfully changed an AC out of 
scope ruling. As you are aware, the board upheld the AC decision and you, 
yourself eventually realized that your original proposal as written was, in 
fact, out of scope.
 
> I really think is very bad not having it.

I remain unconvinced of its necessity. The ARIN process is different… It has 
appeals built in at every step of the PDP. ARIN operates in the US which is an 
inherently litigious environment and the appeals serve (IMHO) as a safety valve 
to avoid litigation.

> I’m convinced the chairs always act on their best good faith and willingness, 
> but this scheme, without a way for the community to oversee the chair’s 
> decision is “per se” against the bottom-up approach.

Again, I disagree. If you enough of the community feels that the chairs erred 
in determining a proposal out of scope, I have no doubt that the community is 
capable of communicating this to the chairs and asking them to reconsider their 
decision. Further, I think the chairs would do so in good faith under that 
circumstance.
 
> Just imagine if we have a set of chairs that aren’t really acting in good 
> faith, but on personal interest (please understand is just an example, not 
> saying at all it is the present case). I don’t think we even have a way to 
> remove them.

I think this is unlikely in the APNIC region, and, if it were to happen, 
proposals being declared out of scope becomes the least or our concerns, 
frankly.

IIRC, there is a process for replacing the co-chairs which seems to me to be 
the better solution to this particular problem. If there is not and you wish to 
propose such a process, I might be more inclined to support something like that.

>  
> Calling out the (remote) possibility that some jurisdiction might have a 
> problem with it is a red herring and absent actual legal doctrine within the 
> APNIC service region, I think it’s a bit far fetched to put that argument 
> forward.
>  
> Agree, but we need to understand that for sure there is a jurisdiction. And 
> in my knowledge (not being a lawyer), any process that doesn’t have an 
> implicit appeal process has lot of chances to be defeated in *any* 
> jurisdiction. It is much better to avoid that, right ?

I do not believe you are correct about that. Again, I am not convinced that 
that law exists in any jurisdiction within the APNIC region either as written 
law or as case law or precedent. Unless and until you can provide such an 
example, I think your argument here is quite hollow.

Please don’t confuse what I said above about the US and litigation as an 
example here. I believe that the ARIN appeal process serves as a low-cost way 
for those that disagree with the AC to present their argument without it having 
to go to litigation. I do not see a likelihood of an APNIC policy co-chair 
decision going to litigation.
 
>> This is now even more relevant to be resolved, because by chance, the chairs 
>> have denied to accept one of the policy proposal that I’ve submited. They 
>> consider it out-of-scope, and my reading is that is in-scope (it has also 
>> been submitted and in-scope to RIPE, LACNIC and AFRINIC). I think their 
>> decision is wrong and this has many implications that we need to work out. 
>> The best avenue is having an “in-house” appeal process, of course.
>  
> You’ve been wrong about what should be in-scope before. I won’t cite the 
> specifics unless you insist, but you are more than welcome to discuss your 
> concerns about it with 
>  
> I’m not talking here about any specific policy proposal, as said before, this 
> happened by chance. The inclusion of the appeal process in this PDP update 
> was done one year in advance this situation, so not related to it.

That’s fine, but you brought up “now even more relevant”, so I figured I’d 
point out that your example of “more relevant” is not as relevant as you seem 
to imply.
 
> Paul and/or the EC and I’m certain you will get an appropriate response. 
> While it’s not a formal appeal process, I’m certain that if they agree with 
> you that the co-chairs erred, they will discuss the situation with the 
> co-chairs and come to an appropriate resolution.
>  
> Agree, and I talked to Paul about it. If I recall correctly, he only 
> suggested to go to the open forum, not him, not the EC. However, we don’t 
> have time allocated for it.

In which case, posting your grievance to the list and listening to what the 
community has to say about it seems like a perfectly reasonable approach.
 
> And furthermore, I don’t think it is savvy if this happens, that we must wait 
> 6 months for discussing it in a meeting.

We can agree to disagree.
 
> If you read the PDP, there is no definition of the scope and there is a 
> contradiction in the text 
> (https://www.apnic.net/about-apnic/corporate-documents/documents/policy-development/development-process/
>  
> <https://www.apnic.net/about-apnic/corporate-documents/documents/policy-development/development-process/>),
>  as it says:
> “Policy proposals are proposals which have been officially submitted for the 
> consideration of the APNIC community …” and then “A formal proposal paper 
> must be submitted to the SIG mailing list and to the SIG Chair”, while the 
> *actual process* is sending to the chairs, so they decide if is being sent to 
> the list or not!

Actually, as I understand the process (and as I have used it in the past), you 
are welcome to send your proposal either to the chairs (who will post it to the 
list if they believe it is within scope) or to the chairs and the list. In 
fact, you are free to post ideas about proposals and get feedback on the 
development of the proposal prior to submission on the list as well.
 
> Should anyone ignore the actual process and just send the proposals to the 
> list?

I don’t think that constitutes ignoring the process. I think that is within the 
list charter and is not an abuse of the list, so why not?

Where is it written that the actual process precludes you from sending your 
proposal to the list prior to it being accepted by the co-chairs?

>> Note that I didn’t knew, when I submitted the PDP update (which is a new 
>> version from a the previous year proposal), that one of my proposals will be 
>> considered by the chairs as out-of-scope. Clarification just so nobody 
>> believes that it is related to that rejection! Chairs can confirm that.
>  
> I don’t think anyone is questioning your motives, Jordi. We all know that 
> your heart is generally in the right place, even if we don’t agree with you 
> about your desired actions.
>  
> We all know that you like how things work in the RIPE region. I will say that 
> I’m not as fond of the RIPE process as you are. I will also point out that 
> general apathy is not 
>  
> Nope. This is not related at all to the RIPE process. What I’m saying is that 
> the APNIC process has clear inconsistencies and we should fix them, the same 
> we do policy proposals sometimes just to clarify text, not necessarily 
> because there is a “big” problem but possible different interpretations of an 
> existing text.

I disagree. You, yourself (in text you removed from the quoted text) advocated 
making APNIC process more like RIPE because you think the RIPE process gets 
better participation and other favorable comments you’ve made about the RIPE 
process in the past.

No matter what you do, there will always be some possible different 
interpretations of existing text. This happens even with professional lawmakers 
and lawyers writing it.

There is no such thing as an unambiguous human language.

Owen


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