[arin-ppml] ARIN-prop-170 Transfer of Number Resources in case Bankruptcy

[John Curran]

On May 10, 2012, at 10:13 PM, Astrodog wrote:

> I believe one of the advantages of such an approach is to avoid the
> legal ambiguity the original policy proposal is designed to handle. By
> reverting the address space to ARIN upon entering
> liquidation/bankruptcy/etc, then reissuing the space to the purchaser,
> the property issue is much clearer, as ARIN is allocating the same block
> to the purchaser as a matter of convenience for all involved, as opposed
> to the original entity having the ability to initiate the transfer under
> liquidation.
> 
> Part of the legal problem that 170 seems to be designed to handle
> originates in allowing the bankrupt entity to direct the transfer. A
> bankruptcy court can order various things *because* the originating
> entity has that ability. If losing control of the space was "automatic"
> if an entity ceases functioning, a bankruptcy court attempting to
> maximize value for an entity's debtors no longer has the ability to
> order a transfer, as the resources are no longer controlled by that
> entity, thus avoiding the potential for a bankruptcy court to order a
> transfer that would violate ARIN's policies.

It appears as through folks are working under very different assumptions
with respect to ARIN and bankruptcy courts.  To date, ARIN has been very
successful in dealing with number resources in bankruptcy, and this is the
result of having a very consistent legal framework which has been respected 
by the courts dealing with these matters.  Specifically, ARIN asserts that
parties do have certain rights to number resources registered to them, and
this includes the right to unique use in the registry and the right to 
transfer in accordance with policy.  There are other parties (such as the
Internet community) which have rights to these same number resources (such 
as the right to public visibility to certain portions of the registration, 
the right to require certain contact information be present, etc.)  It is 
the community-developed policy which determines the interaction of these
rights.

ARIN has dealt with bankruptcy courts before, and has prevailed to date in 
every case.  To date, multiple IPv4 resources have been transferred in 
compliance with existing policy, and include the following proceedings 
and block sizes:

    In Nortel (Nortel I – USA) (Delaware)   04/26/2011 9 /16’s; 1 /17; 1 /18; 4 /20’s; 2 /21’s; 1 /22; 4 /23’s; and 16 /24’s
    In re: Borders Group, Inc., et al., (S.D.NY) 12/20/2011 1 /16
    In re: Teknowledge Corporation (N.D.CA) 1/24/2012 1 /16
    In Northern Telecom Canada, Ltd. (Nortel II – Canada)  2/24/2012 2/16’s
    In Bell-Northern Research (Nortel II – Canada) 2/29/2012 1 /14,  2/29/2012 1 /14, 4/10/2012 2 /16’s

In each of these matters, there is language noting ARIN's role in providing
registration services, and in recent ones the language is generally to the
effect that the recipient's interest in the number resources shall be subject 
to the terms and conditions agreed to by ARIN and recipient via registration
services agreement, including applicable ARIN policies as published on our
website.

By having a consistent approach to these matters, one which acknowledges
and respects certain rights that address holders have, we have been very
successful and have never been ordered to update the registry contrary to
community-developed policy.

> Do you have any thoughts as to what a policy like this entails, in terms
> of administrative and legal overhead, for ARIN?

The proposed approach would be a significant departure from our existing 
efforts in this area, and would require some extensive legal assessment to 
determine the implications. I do not know offhand how it would affect ARIN's 
ability to provide registry services consistent with community policy, and/or
whether it would improve or reduce our present success in this area. 

Thanks,
/John

John Curran
President and CEO
ARIN