[rpd] [Community-Discuss] Unaddressed queries by AFRINIC during AGMM

[Mike Silber]

Hi Owen


> On 2 Jul 2021, at 11:49, Owen DeLong <owen at delong.com> wrote:

> 



> 

> So if a membership organization that is open to all service providers in the region is rejecting/terminating memberships solely on the base of their involvement in a particular legal second line of business outside the region and doing so to the detriment of their ability to provide the existing services in the region, you don’t believe that would be a form of tortious interference? Interesting. I defer to your greater expertise in this area, of course, but I find it surprising.

> 

I think you are missing a key component, I am not sure if intentionally or not? Membership organisations almost universally have a constitution / by-laws / criteria for membership / expected terms of behaviour. I am not aware of any country’s laws that allow one to insist on membership of an organisation - without also undertaking to abide by the relevant constitution / by-laws / criteria for membership / expected terms of behaviour.

If the rules provide for the eventuality you describe and IF proper process is followed (note the caveat), i see no issue with membership being rejected / terminated. It would be the equivalent of rejecting / terminating a membership if the (prospective) member does not pay the membership fees.

My understanding is that for there to be tortuous interference, there must be a tort - which involves WRONGFULNESS. If the actions of the organisation are not wrongful, there is no tort and thus the consequences to the harmed party are irrelevant. If it wanted the benefits of membership - it should have played by the rules ….IF those rules are validly enforced.


>> The Mauritian competition framework does not provide for extraterritorial jurisdiction - so I fail to see what basis there would be for any potential anti-trust action?

> 

> This makes me think, perhaps you misunderstand my example, or seized upon a less than perfect detail vs. the intended concept.

> 

No I didn’t but let’s try again.


> Let’s try it a different way.

> 

> Let’s say that there are two ISPs operating in Mauritius. One of them also operates an IP Brokerage in the Netherlands trading in allocations/assignments issued by RIPE-NCC and operating entirely within the RIPE-NCC policies.

> 

> Would you still say that it’s legal OK for AFRINIC to reject/terminate the membership of the one operating the brokerage in the Netherlands on that basis?


I am not sure why there needs to be two ISPs and what the relevance is of the second ISP. Above you were arguing it is a tort, now you are arguing anti-competitive action.

Anti-competitive conduct seems a huge stretch when the vertical relationship between AfriNIC and members operates on a not for profit basis and is not designed to favour any one or more party - only to ensure compliance with a set of rules. Would refusing service to a member that does not pay its fees be anti-competitive? If AfriNIC rejects/terminates membership of only one member …. when there are others behaving in the same way, then this conduct would more likely be a breach of by-laws and inequitable application of the rules, rather than anti-competitive. 

I don’t see it as being anti-competitive as I fail to see the basis to argue a lessening of competition …. unless you have a conspiracy theory that is beyond me.

Mike

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