[arin-ppml] ARIN 2019-13

[Fernando Frediani]

Hello.
Thanks for sending these important explanation and point and 
congratulations to ARIN legal staff for this.

I would comment further saying that this type of assessment raises the 
importance to some points used in some discussions sometimes like "The 
internet evolved in X aspect and we need to adapt to it", "Business 
require it and the registry cannot refuse such thing". It is necessary 
to analyze with caution a lot of different aspects that sometimes may 
look obvious due to 'evolution' but may only be interesting to a few.

Fernando

On 16/10/2019 20:16, Amy Potter wrote:
> 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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