On Thu, Jul 9, 2015 at 12:21 PM, Nigel Roberts <nigel@channelisles.net> wrote:

Very interesting and helpful comments.

Here's where I am at. I was, for about four years, a Board Member of a non-profit, ICANN-like organisation in the UK. (The Radio Society of Great Britain -- see www.rsgb.org).

That was originally founded by some bloke named Marconi, and some of his chums in 1913, but it was incorporated as a company Limited by Guarantee in the 1920s, which it remains this day.

The liability of each member (there are no shareholders) is limited to an amount that is set in the Articles. In the case of very old organisations like this, it's just one pound!.

The Members control the board by election, and the Board, just like the ICANN Board, has a fiduciary duty.

Now, I'm NOT suggesting that individual SOs establish themselves under English or Scottish law as this sort of incorporated non-profit (which is PARTICULARLY suited to a membership model), nor indeed as the more modern Community Interest Company (CIC).

But what I'm saying is that my instincts, as shown by Edward's very scary but accurate scenario, are to avoid woolly, inchoate, structures and prefer well-defined (and, to be honest, inexpensive) formal structures such are provided for in the law of most European states.

My two eurocents.

On 09/07/15 16:15, Edward Morris wrote:

Hi Nigel,

I'm in the U.K. and have raised the issue in the past, but only to
suggest that because of this some SOAC's might want to consider the more
complex formation of a PBC as an option going forward.

You are correct about the status of UA's in the UK (Scotland as well as
England and Wales - different legal system, as you know). The same holds
true in Finland, the country where I received the bulk of my legal
education. Over time, though, in both countries the courts would
eventually recognise the liability protection afforded by California law
as a matter of comity. Long term, I don't see a problem. That said, I'm
pretty sure that were I to want to sue someone involved in a SOAC in the
UK for actions of the SOAC I'd be able to get through a Directions
Hearing and force a trial upon the other party. That's why
indemnification is particularly important if UA's are used going forward.

Might I also respectfully suggest that most of us are already part of
UA's, albeit of the non registered variety. I would suspect I could make
the case that the NCSG, NCUC and GNSO, all of which I'm active in, could
currently be construed as UA's under British law and elsewhere and thus
I could already be held liable for the actions of these organs. I don't
see where any of the proposed structures would make my individual
situation worse going forward.

Kind Regards,

Ed Morris

On Thu, Jul 9, 2015 at 3:20 PM, Nigel Roberts <nigel@channelisles.net
<mailto:nigel@channelisles.net>> wrote:

One of the leading authorites on this matter, and the real dangers
of UA structures is the Gillingham Bus Disaster case (RE GILLINGHAM
BUS DISASTER FUND [1958] Ch 300)

https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gillingham+Bus+Disaster+appeal+judgment&source=bl&ots=rGrH81jGKn&sig=jCRoZq2-tiGTN7MUuzoteOS0oPw&hl=en&sa=X&ei=r4KeVbjAHIT2UpHHi4AL&ved=0CCQQ6AEwAQ#v=onepage&q=Gillingham%20Bus%20Disaster%20appeal%20judgment&f=false

Happy reading.

On 09/07/15 15:17, Nigel Roberts wrote:

Unincorporated associations in English, and Scottish law
explicitly have
unlimited liability. There is no registration involved, they simply
exist as a matter of law. So if you and I formed a bridge club
at our
local pub, and invited members, that would automatically be a
UA, would
NOT have legal personality, and the members, and more
particularly, the
officers, would have UNlimited liabtliy

The assets of the UA are held on trust, in the legal name of the
officers, for the purposes of the UA.

I am assuming the difference here is that a California
unincorporated
assocation is not an unregistered entity but is a creature of
statute
(state law), giving limited liability following a registration
process.

Is that correct?

Nigel

PS: I apologise for not having read every single email that was sent
before I joined this list last week; as my law professor (a High
Court
judge said: "Nothing is obvious to everybody").

On 09/07/15 15:07, Greg Shatan wrote:

Nigel,

A California unincorporated association is a limited
liability vehicle,
as it is in certain other jurisdictions. If we were to go
down the
route of have SO/ACs be/create/empower (three different
options) a legal
entity, one would expect a choice to be made that would
shield SO/ACs
and their members from unlimited legal liability (and there
are a
variety of options to do so). While this should be implicit
by now in
this discussion, since it has been explicitly discussed in
the past, I'm
glad for the opportunity to make it explicit once again.
Suggesting
someone cross the street is not equivalent to telling them
to walk into
traffic.

Greg

On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts
<nigel@channelisles.net <mailto:nigel@channelisles.net>
<mailto:nigel@channelisles.net

<mailto:nigel@channelisles.net>>> wrote:

Greg, all

I have a deadly serious question.

Why would any Member of an SO voluntarily submit to the
danger of
unlimited monetary liability?

So why is anyone even considering UA status for more
than 10 seconds?

Nigel

See

http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-or-unincorporated-association/

On 09/07/15 14:35, Seun Ojedeji wrote:

On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan
<gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>
<mailto:gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>>
<mailto:gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>
<mailto:gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>>>> wrote:

Seun,

Can you point where this understanding and
learning comes
from? I
don't think any of this is correct, unless you are
referring to a
"council" where each SO/AC is a statutory
member of the
corporation.

Yes indeed thats what i was referring to

This is not the case in the "single member
model," where
there is
only one statutory member.

Okay thanks for clarifying that for me. So if i get
this
correctly; does
it mean one of the SO/AC will be a member and then
every other
SO and AC
exercise their powers through that single member?.
Specifically
which of
the SO/AC will be member in the single member model?

However if one of the SO/AC won't have to become a
member but
the entire
council becoming a UA to fulfill membership
requirement, how
will that
address some SO/AC not wanting to enter into such legal
formality? also
how will accountability of the council be ensured
as it could
then mean
creating a mini-ICANN board as the council members
would have
the voting
rights, independence et all. Perhaps the council
can be limited
by its
governing document, but how will removing council
members for
instance
be in effect if the populating source(SO/AC) is not
a UA.

Perhaps its not as complicated as i am imagining it
so it will
be good
to hear some clarifications.

Regards

Greg

On Thursday, July 9, 2015, Seun Ojedeji
<seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>
<mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>
<mailto:seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>
<mailto:seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com>>>> wrote:

I understand the powers would be bestowed
on the council
individuals and not their source position;

For instance one of the option is to
populate the
community
council with leaders of SO/AC, which IMO
would be the
cheapest
route in this model so they would be
occupying a
virtual seat
and exercise those powers when required.
It would also
allow the
various SO/AC internet accountability
mechanisms
apply to
council including removal of members.

However, I then learnt that the council
cannot be
formed by
SO/AC leader positions but rather to the
occupants of
that
position. This would mean having to
rewrite the
bylaw/document
forming the council often since leaders of
those
positions are
dynamic and could change at anytime. Will
be good to
know if
that is no longer the case

Regards
Sent from Google nexus 4
kindly excuse brevity and typos.

On 7 Jul 2015 2:56 pm, "Roelof Meijer"
<Roelof.Meijer@sidn.nl
<mailto:Roelof.Meijer@sidn.nl> <mailto:Roelof.Meijer@sidn.nl
<mailto:Roelof.Meijer@sidn.nl>>>
wrote:

Interesting, we’re back on the subject
of a single
member
structure. It was written off before

Cheers,

Roelof

From:
<accountability-cross-community-bounces@icann.org
<mailto:accountability-cross-community-bounces@icann.org>

<mailto:accountability-cross-community-bounces@icann.org
<mailto:accountability-cross-community-bounces@icann.org>>> on
behalf of Roelof Meijer
<roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>
<mailto:roelof.meijer@sidn.nl
<mailto:roelof.meijer@sidn.nl>>>
Date: woensdag 22 april 2015 15:56
To: "avri@acm.org
<mailto:avri@acm.org> <mailto:avri@acm.org
<mailto:avri@acm.org>>"
<avri@acm.org <mailto:avri@acm.org>
<mailto:avri@acm.org <mailto:avri@acm.org>>>,

"accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>>"

<accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org

<mailto:accountability-cross-community@icann.org>>>
Subject: Re: [CCWG-ACCT] member
organization and
single
membership structure

Hi Avri,

The sole membership construction, is a
possibility
described
in the legal document in several
places: the
comments by the
legal experts on the PCCWG mechanism
template (page
64) and
the Community Council mechanism
template (page
69). I
sent several emails about it to the
WP1 list,
suggesting to
look in the possibility as indeed it
would not
necessitate
every SO and AC to become a legal
entity. And, as
you do,
suggesting: "make the „Community
Council” the sole
member of
ICANN (and thus a formal legal
entity), consisting
of either
the SO and AC chairs or SO/AC elected
representatives” (from
an email of 14 April).

And I would think it would enable the
SO’s and AC’s
themselves to continue appointing
directors, as
they do now.
But that’s just guessing, based on the
fact that
the SO’s
and AC’s themselves would not change
status

Best,

Roelof

From: Avri Doria <avri@acm.org
<mailto:avri@acm.org>
<mailto:avri@acm.org <mailto:avri@acm.org>>>
Organization: Technicalities
Reply-To: "avri@acm.org
<mailto:avri@acm.org> <mailto:avri@acm.org
<mailto:avri@acm.org>>"
<avri@acm.org <mailto:avri@acm.org>
<mailto:avri@acm.org <mailto:avri@acm.org>>>
Date: woensdag 22 april 2015 15:09
To:
"accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>>"

<accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org

<mailto:accountability-cross-community@icann.org>>>
Subject: Re: [CCWG-ACCT] member
organization and
single
membership structure

Hi,

On 22-Apr-15 08:26, Roelof Meijer wrote:

2)
What I find quite frustrating is
that I have
raised the
point of the possibility (or not)
of a single
membership
structure – an option mentioned by
Sidley and
Adler &
Colving in their legal advice –
several times
by now
without getting any substantial
reaction. I am
not aware
that any serious effort to
investigate this has
led to a
formal write-off.

In some way that might lessen the
complexity of
making most
SOAC an individual legal entity.

How would it work? Would we continue
to appoint
Directors
just as we do now?

Or would there need to be some sort of
Members
Council that
took actions, working simliarly to the the
executive board
or community council idea?

thanks

avri

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--

------------------------------------------------------------------------

/Seun Ojedeji,
Federal University Oye-Ekiti
web: http://www.fuoye.edu.ng
Mobile: +2348035233535 <tel:%2B2348035233535>
<tel:%2B2348035233535>
//alt

email:<http://goog_1872880453>seun.ojedeji@fuoye.edu.ng
<mailto:seun.ojedeji@fuoye.edu.ng>
<mailto:seun.ojedeji@fuoye.edu.ng
<mailto:seun.ojedeji@fuoye.edu.ng>>
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<mailto:seun.ojedeji@fuoye.edu.ng>
<mailto:seun.ojedeji@fuoye.edu.ng
<mailto:seun.ojedeji@fuoye.edu.ng>>>/

The key to understanding is humility - my
view !

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