Draft Policy ARIN-2019-13: ARIN Membership Legal Jurisdiction Exclusion [Archived]
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Shepherds: Amy Potter, Alicia Trotman
ARIN Advisory Council Meetings:
- 16 May 2019
- 20 June 2019
- 18 July 2019
- 15 August 2019
- 19 September 2019
- 17 October 2019
- 1 November 2019
Current Text (20 June 2019)
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.
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:
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, legal 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:
Timetable for Implementation: Immediate
Staff and Legal Review (8 August 2019)
Summary (Staff Understanding)
Staff’s understanding is that this draft policy would permit corporate entities not legally registered within the ARIN region to both request and receive directly registered Internet number resources from ARIN, so long as said entity can demonstrate they have a real and substantial connection to the ARIN region as defined in section 9 of ARIN’s Number Resource Policy Manual (NRPM).
ARIN Staff Comments
Staff implementation would be to allow out of region entities to create and maintain organizational records (OrgIDs) for the purpose of requesting and receiving Internet number resources. They must be able to demonstrate they have a real and substantial connection to the ARIN region, as defined in section 9 of ARIN’s NRPM and must meet the policy requirements outlined in other appropriate sections of NRPM.
Having a legally registered business entity within the ARIN region would no longer be a requirement.
Staff would be required to verify that the business entity is legally registered in the country contained in their legal address and may request legal documentation as proof of registration. This would require staff to understand the requirements of the country in order to determine if the organization is legally registered.
ARIN General Counsel – Legal Assessment
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.
Implementation of this policy would have moderate resource impact. It is estimated that implementation would occur within 4 months after ratification by the ARIN Board of Trustees.
The following would be needed in order to implement:
- Staff training (additional training and research capabilities for verifying in countries outside ARIN region)
- Updated guidelines and internal procedures
Proposal/Draft Policy Text Assessed: 20 June 2019 Version