[members-discuss] NRO letter to Mauritian Government

Hi,


This thread on AfriNIC got me curious once again of this line of business. It seems the whole thing started when someone sued them and then got an injunction in a civil lawsuit. It also seems that AfriNIC has in the past had some issues with corporate governance... There have been allegations of sexual harassment, workplace harassment, the previous auditor (PwC) resigned, the co-founder fired, etc. the list is rather long even going back only a few years. I think that is what most people need to know but in case you are curious just google AfriNIC and you'll find a lot of material on mailing lists, news outlets, etc. on these and some other subjects.

There are currently five regional internet registries, RIRs, that handle IP addressing and quite a lot of other things in their organizations. For everyone's convenience I've listed them here below with their legal name, domicile, and entity type.

AfriNIC, or AFRICAN NETWORK INFORMATION CENTRE (AfriNIC) LTD by its full name, seems to be a Mauritius private domestic company, limited by guarantee. [1]
RIPE NCC, or RESEAUX IP EUROPEENS NETWORK COORDINATION CENTRE (RIPE NCC) , seems to be an Association incorporated in The Netherlands. [2]
APNIC, or APNIC PTY LTD, seems to be a Proprietary limited company incorporated in Australia with one person as the Global Ultimate Owner (GUO). [3]
ARIN, or AMERICAN REGISTRY FOR INTERNET NUMBERS, seems to be incorporated in Commonwealth of Virgina, USA, a non-profit company under IRC 501(c)(6). [4]
LACNIC, incorporated as REGISTRO REGIONAL DE DIRECCION IP LATINOAMERICANO Y CARIBE, is a private company [5] but is registered as an accredited international organization with the UY MFA [6]

What do all these five organisations have in common? Well, besides getting most of their revenue from their customers (members) for miscellaneous services, currently they do need to follow the laws of the country they're incorporated in. Yes, even LACNIC. I'll come back to the why slightly later in this message. While looking at LACNIC, interestingly, it turned out that they had had to restate their financials for FY2020 due to IFRS for SMEs and fair value treatment (mark to market really) at EOY 2020 to value investments at their amortized cost starting FY2021. Nothing improper, as KPMG noted, as sometimes restatements are technical in nature. [7] AfriNIC, which was the subject of the letter, has had its share of "issues" which have been a bit more serious as was mentioned previously.

Anyway, back to the original topic of The Letter. The Mauritus Companies Act of 2001, which both superseded and repealed the Companies Act 1984 as well as the International Companies Act 1994, does not include a construct called "international organisation" that was mentioned in the original letter sent to the Government of Mauritius. Curiously, there is an International Organisations and Conferences (Privileges and Immunities) Act of 1971 which does cover entities such as the United Nations and its agencies, the International Court of Justice, etc. These are organizations that are established based on international treaties ratified by the member nations.

Part 4, Section 19 states "The Minister may, by regulations, designate an international organization established under an international agreement to which Mauritius is or intends to become a party to be an organisation to which this Part applies and, for the purposes of section 21, make provision for the inviolability, exemptions, facilities, privileges, immunities and rights of any organisation to which this Part applies."

Furthermore in Part 4, Section 21 states "An organisation to which this Part applies, its institutions or organs, and its property, any person who is a member of any of its institutions or organs, any official of the organisation or a delegate or a representative of a State or Government that is a member of the organisation or is performing duties as-signed to him by the organisation and any person, being a spouse of that person or a member of his family dependent on him, shall have and enjoy in-violability, exemptions, facilities, privileges, immunities and rights in the manner, to the extent and subject to the limitations, including the provisions relating to waiver, specified in each case in regulations made under section 19."

You wrote that "The NRO's letter was a joint effort by the legal teams of the five RIRs". Could you or someone from the legal team(s) describe:

* Whether the "international organization" defined in the Mauritius IOCPI Act of 1971 was what was really meant in the letter that was sent
* What international agreement Mauritius is party to or intends to become a party to that would apply to AfriNIC
* What were the thought processes within the RIRs, ICANN NRO and their legal teams on why AfriNIC as an organization, AND some of its designated representatives and potentially family, should be extended something that effectively resembles an immunity by the government of the country the company operates in
* Your (RIPE's) thinking why the Government of Mauritus should extend something that might contain clauses for the purposes of immunity to some random domestic company (this is what you are really requesting, some level of protection from at least civil lawsuits)
* What would be the judicial process for such an international organization, that does not have its own internal judicial body, in any kind of dispute that would normally be handled through a civil or criminal law process of the host country
* How would any of this be beneficial to AfriNIC's members (customers) or anyone else for that matter ("to protect ourselves from lawsuits from the people who rent IP addresses elsewhere" is not what I am looking for)

As I am entitled to my opinion, I think that The Letter was a terrible, just terrible idea. The obvious end result is that it reduces generally accepted corporate governance policies, reduces oversight and certainly reduces corporate transparency, it reduces the accountability of the organization and its representatives and is certainly not in line with the "we are here for our members, provide services to our community, do come and join us for a beer on Friday to meet new faces and lets make the internet a nicer and more safe place for everyone" perspective. Furthering and implementing less governance, less oversight and less transparency is certainly not in the interest of any customers ("members").

While the role of corporate legal - "the legal teams of the five RIRs" - is to protect the entity and ensure continuity of the organization, I am of the view that entities like the RIRs are there to provide useful services to their members. Thus, the organization and its independent board - which should provide oversight - should take the role and viewpoint of the membership (customers) when making decisions because sometimes how things seem is exactly how they are. If it the RIRs and ICANN NRO want to become international organizations for reasons of convenience, they could just as well be part of ITU.

I did a bit of napkin math a few years ago, based on publicly disclosed information, of all the RIRs and that was quite the surprise at least for me. It turned out that together they had roughly 100M EUR top line with 10% profit margin, held 131M EUR in assets of which in 80M EUR cash or equivalents, employed roughly 400 people full-time, and were funded by 62500 customers (members). Well-meaning organizations such as the RIRs also seem to suffer from serious mission creep since the budgets tend to increase year over year. Most of the customers (members), of course, are completely unaware of these things.


Looking forward to a very constructive discussion.



Kaj

[1] MNS CBRIS
[2], [3], [4] ORBIS
[5] Equifax Uruguay
[6] UY MFA
[7] LANIC Report to the Board of Directors regarding to the audit of financial statements in US Dollars as of December 31, 2021

-----Original Message-----
From: members-discuss <members-discuss-bounces at ripe.net> On Behalf Of Hans Petter Holen
Sent: Tuesday, July 19, 2022 11:54
To: Sander Steffann <sander at steffann.nl>
Cc: members-discuss at ripe.net; board at ripe.net
Subject: Re: [members-discuss] NRO letter to Mauritian Government

Dear Sander, all,

The RIPE NCC is part of the NRO, together with the other four RIRs. This body has a very clear mission to actively contribute to an open, stable and secure Internet. Where joint action or a common voice among the RIRs is needed, the NRO provides the platform that allows that to happen. Through the NRO, we, along with the other RIRs, have been supporting the efforts to maintain a stable Internet presence in Africa. And this letter from the NRO is part of those supporting efforts:
https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nro.net%2Fnro-letter-to-mauritius-government%2F&data=05%7C01%7C%7C19d6eb20943a4570012f08da69671aa6%7Cd0b71c570f9b4acc923b81d0b26b55b3%7C0%7C0%7C637938188806816608%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=5TfLxqIzN7cuESnULip7vYl%2BRlK7fneroADH88DwJSo%3D&reserved=0 

The NRO's letter was a joint effort by the legal teams of the five RIRs, after AFRINIC requested our support in the matter. We firmly believe it was important to add our name alongside the other RIRs and collectively put our weight behind AFRINIC's request to the Mauritian government. 

I understand that not everyone will agree with this approach. I and my fellow NRO EC members are committed, however, to being as transparent as possible about any such communications to governments and welcome any discussions in our communities. This is how it should be. I believe you are aware that the RIPE NCC and all the RIRs regularly deal with governments when they believe it is necessary to protect the Internet number registry system. Indeed, we regularly communicate with the Dutch government in relation to sanctions, and we have published much of our correspondence with other governments, in line with our commitment to be transparent in these matters. If, as the RIPE NCC, we felt that such interactions with governments could be helped by adding the weight of the NRO, I hope the other RIRs would consider lending their voice to such matters.

Finally, the RIR system is bigger than any of its individual RIRs, so I will reiterate what the NRO stated in its recent message asking the AFRINIC community to come together to solve issues with its RIR: "The regional activities and policy process of an RIR are solely in the hands of that community, but the health of those processes is of paramount importance to the global Internet community." 
https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nro.net%2Frirs-message-to-the-afrinic-community%2F&data=05%7C01%7C%7C19d6eb20943a4570012f08da69671aa6%7Cd0b71c570f9b4acc923b81d0b26b55b3%7C0%7C0%7C637938188806816608%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=pJ0XOjnXl7VSiy9tcvyRdjVJzG3IscRSBa5rKOX4cQY%3D&reserved=0

This is why the NRO was willing to support AFRINIC in its requests to the Mauritian government - while it is up to each RIR community to address issues with their own RIR, it is up to all RIRs to address issues that can impact the overall system. To not do so would constitute inadequate governance on the part of the RIRs. I understand that you do not agree with the approach taken here, but I hope you will understand why the RIPE NCC and its Board feels it is important that we stand together on this matter.

Regards,

Hans Petter Holen			Christian Kaufmann
Managing Director 			Chairman
RIPE NCC				RIPE NCC Executive Board


> On 13 Jul 2022, at 11:57, Sander Steffann <sander at steffann.nl> wrote:
> 
> Hi,
> 
> I just read the message from the NRO (co-signed by Hans Petter Holen on behalf of the RIPE NCC) to the Mauritian Government: https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nro.net%2Fnro-letter-to-mauritius-government%2F&data=05%7C01%7C%7C19d6eb20943a4570012f08da69671aa6%7Cd0b71c570f9b4acc923b81d0b26b55b3%7C0%7C0%7C637938188806816608%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=5TfLxqIzN7cuESnULip7vYl%2BRlK7fneroADH88DwJSo%3D&reserved=0 and I must say I was shocked.
> 
> The letter is about the lawsuits of Cloud Innovation Ltd (Lu Heng) against AFRINIC. The NRO is urging the government to recognise AFRINIC as an international organisation "that if granted, it might lead to more appropriate outcomes". So basically the NRO is urging the Mauritian government's executive branch to intervene in its judicial branch. Asking a government is to violate their separation of powers is NOT OK(tm).
> 
> Now don't get me wrong, I don't like Lu Heng and the way he does business, but not all his lawsuits are without merit, so this is something for the Mauritian court to decide. The NRO pushing the government to intervene goes against the basis of the democratic system.
> 
> The letter even does more than urging. It basically threatens/insults Mauritius:
> 
> """
> To successfully operate a continental wide entity such as AFRINIC, the African Internet community deliberately chose to locate its headquarters in Mauritius in order to obtain the benefit of a stable and consistent legal system.
> [...]
> It would be very unfortunate for the African regional community if the above situation proves that the designation of Mauritius as the place to locate AFRINIC has been wrong.
> """
> 
> This letter has raised some eyebrows around the world (and as I understand it in Brussels) to say the least. I would like a response from the RIPE NCC and its board on how they have dared to write such a letter.
> 
> Sincerely,
> Sander Steffann
> 
> 
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