[arin-ppml] ARIN 2019-13

[Amy Potter]

Hey ppml,

We received a staff and legal assessment for ARIN 2019-13 ARIN Membership
Legal Jurisdiction requirement a bit ago that presented some serious
concerns about adopting this policy. Based on these concerns I plan to move
to abandon this policy. Just wanted to give the community an opportunity to
voice their opinions one last time.

The policy proposal text is included at the end as a refresher.

Here were the legal assessment comments:

• There are significant material legal concerns regarding adoption of this
policy.

To date, entities receiving addresses from ARIN have an ARIN region
incorporation. This is important, as it has permitted ARIN to send
correspondence or make legal service in its region to the entities it is
servicing. The proposed policy would reverse 21 years of practice and
experience and require ARIN accept the necessity to potentially serve legal
papers via a foreign legal forum and litigate in non-region countries. Such
foreign legal forums may be located in some of the countries not committed
to the rule of law which is prevalent in our region, and before foreign
courts or tribunals which are hostile to foreign business interest and/or
where the legal system may be expensive and unresponsive.  In addition, the
capability for ARIN to know its customer will be substantially reduced for
out of region companies with no in-region domiciled entity.
  Considering the legal risks that would result from the proposed policy,
counsel has serious concerns and would advise against adoption unless it is
shown that ARIN has clear and pressing need for adoption to fulfill its
mission.


*Proposal Text*

Problem Statement:

Legal entities incorporated outside the ARIN service region that have a
strong nexsis to the ARIN as described in section 9 should be permitted to
hold direct allocations and assignments from ARIN.

Example: Imagine a US based global company that has many international
subsidiaries. The company does real business both in the US, Canada, and
Caribbean as well as in Europe, Asia, Latin America, and Africa. The
corporate headquarters, majority of offices and employees are in the US.
Most C-level execs live and work in the US. The majority of customer base,
network infrastructure, and revenue generation is within the ARIN service
region.

The company decides to offer their services as part of a global service
offering in a particular non-ARIN region country. Legal restrictions
require an in-country legal entity to hold ownership of the service
providing network including the registration of Autonomous system number
used for peering.

The global IP address management team desires to maintain their ARIN
relationship, and prefers to request ARIN to create an OrgID for the
(non-ARIN service region) in-country legal entity, have ARIN assign an ASN,
and re-allocate IPs from the US entity that offers the service both inside
and outside of the ARIN service region.

Policy Statement:

Current Text:

A real and substantial connection shall be defined as carrying on business
in the ARIN region in a meaningful manner. The determination as to whether
an entity is carrying on business in the ARIN region in a meaningful manner
shall be made by ARIN. Simply being incorporated in the ARIN region shall
not be sufficient, on its own, to prove that an entity is carrying on
business in the ARIN region in a meaningful manner. Methods that entities
may consider using, including cumulatively, to prove that they are carrying
on business in the ARIN region in a meaningful manner include:

Revised Text:

A real and substantial connection shall be defined as carrying on business
in the ARIN region in a meaningful manner. The determination as to whether
an entity is carrying on business in the ARIN region in a meaningful manner
shall be made by ARIN. Simply being incorporated in the ARIN region shall
not be sufficient, on its own, to prove that an entity is carrying on
business in the ARIN region in a meaningful manner. Likewise, *l**egal
entities can demonstrate a substantial connection to the ARIN service
region without necessarily being incorporated within the ARIN service
region.* Methods that entities may consider using, including cumulatively,
to prove that they are carrying on business in the ARIN region in a
meaningful manner include:
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