FW: Regarding GAC participation
Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I'm not sure when this got posted, but I think it was on the "last modified" date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel's Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder's mere "alter ego"). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN
Rosemary Are you coming back to "*a California unincorporated association "* again??? We have abadonned that : Regards Kavouss ( 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com>:
Dear CCWG:
We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21.
https://community.icann.org/pages/viewpage.action?pageId=54695403
See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
*CCWG Legal Counsel's Response*: *If the sole member is* *formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605.*
*Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants.*
While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Perez Galindo, Rafael *Sent:* Wednesday, September 30, 2015 2:26 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Regarding GAC participation
Good morning/afternoon/night to All
In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on.
Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "*[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.".*
In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM).
Looking forward to receiving the legal advice, thank you and best regards
Rafael
GAC_SPAIN
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavouss: Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today. I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Thursday, October 01, 2015 1:35 AM To: Rosemary E. Fei Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Rosemary Are you coming back to "a California unincorporated association " again??? We have abadonned that : Regards Kavouss ( 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>: Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel’s Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss, “unincorporated association” is the current proposal, so definitely not abandoned. Mike From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Rosemary E. Fei Sent: Thursday, October 1, 2015 4:44 AM To: 'Kavouss Arasteh' Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear Kavouss: Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today. I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>, and delete all copies of this message and its attachments, if any. Thank you. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Thursday, October 01, 2015 1:35 AM To: Rosemary E. Fei Cc: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Rosemary Are you coming back to "a California unincorporated association " again??? We have abadonned that : Regards Kavouss ( 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>: Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel’s Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Mike We have not agreed that it is current subject. Who has so decided? Regrards Kavouss 2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier@intel.com>:
Kavouss,
“unincorporated association” is the current proposal, so definitely not abandoned.
Mike
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Rosemary E. Fei *Sent:* Thursday, October 1, 2015 4:44 AM *To:* 'Kavouss Arasteh'
*Cc:* Accountability Cross Community ( accountability-cross-community@icann.org) *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
Dear Kavouss:
Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today.
I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you.
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com <kavouss.arasteh@gmail.com>] *Sent:* Thursday, October 01, 2015 1:35 AM *To:* Rosemary E. Fei *Cc:* Accountability Cross Community ( accountability-cross-community@icann.org) *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
Rosemary
Are you coming back to "*a California unincorporated association "* again???
We have abadonned that
:
Regards
Kavouss (
2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com>:
Dear CCWG:
We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21.
https://community.icann.org/pages/viewpage.action?pageId=54695403
See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
*CCWG Legal Counsel's Response*: * If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605.*
*Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants.*
While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Perez Galindo, Rafael *Sent:* Wednesday, September 30, 2015 2:26 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Regarding GAC participation
Good morning/afternoon/night to All
In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on.
Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "*[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.".*
In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM).
Looking forward to receiving the legal advice, thank you and best regards
Rafael
GAC_SPAIN
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
It was one of the core components of the 2nd draft report. And we have received feedback on the SMCM which of which it is a component of, while I don’t feel we should discuss it directly its definintly a current issue. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Kavouss Arasteh Date: Thursday 1 October 2015 15:05 To: "Chartier, Mike S" Cc: "Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>)" Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear Mike We have not agreed that it is current subject. Who has so decided? Regrards Kavouss 2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>>: Kavouss, “unincorporated association” is the current proposal, so definitely not abandoned. Mike 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 Rosemary E. Fei Sent: Thursday, October 1, 2015 4:44 AM To: 'Kavouss Arasteh' Cc: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear Kavouss: Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today. I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>, and delete all copies of this message and its attachments, if any. Thank you. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Thursday, October 01, 2015 1:35 AM To: Rosemary E. Fei Cc: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Rosemary Are you coming back to "a California unincorporated association " again??? We have abadonned that : Regards Kavouss ( 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>: Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel’s Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
James, If you refer to Unincorporatede association, we have dropped it totally and do not wish to come back to such a legally complex process Regards Kavouss 2015-10-01 16:11 GMT+02:00 James Gannon <james@cyberinvasion.net>:
It was one of the core components of the 2nd draft report. And we have received feedback on the SMCM which of which it is a component of, while I don’t feel we should discuss it directly its definintly a current issue.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of Kavouss Arasteh Date: Thursday 1 October 2015 15:05 To: "Chartier, Mike S"
Cc: "Accountability Cross Community ( accountability-cross-community@icann.org)" Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation
Dear Mike We have not agreed that it is current subject. Who has so decided? Regrards Kavouss
2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier@intel.com>:
Kavouss,
“unincorporated association” is the current proposal, so definitely not abandoned.
Mike
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Rosemary E. Fei *Sent:* Thursday, October 1, 2015 4:44 AM *To:* 'Kavouss Arasteh'
*Cc:* Accountability Cross Community ( accountability-cross-community@icann.org) *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
Dear Kavouss:
Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today.
I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you.
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com <kavouss.arasteh@gmail.com>] *Sent:* Thursday, October 01, 2015 1:35 AM *To:* Rosemary E. Fei *Cc:* Accountability Cross Community ( accountability-cross-community@icann.org) *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
Rosemary
Are you coming back to "*a California unincorporated association "* again???
We have abadonned that
:
Regards
Kavouss (
2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com>:
Dear CCWG:
We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21.
https://community.icann.org/pages/viewpage.action?pageId=54695403
See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
*CCWG Legal Counsel's Response*: * If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605.*
*Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants.*
While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Perez Galindo, Rafael *Sent:* Wednesday, September 30, 2015 2:26 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Regarding GAC participation
Good morning/afternoon/night to All
In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on.
Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "*[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.".*
In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM).
Looking forward to receiving the legal advice, thank you and best regards
Rafael
GAC_SPAIN
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss, I refer you to paragraph 306 of our 2nd draft proposal which states: As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets. So it is clear that we have not dropped unincorporated association totally as the SMCM would be required to be an unincorporated association. I hope that makes things clearer as to what I am referring to. -James From: Kavouss Arasteh Date: Thursday 1 October 2015 15:24 To: James Gannon Cc: "Chartier, Mike S", "Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>)" Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation James, If you refer to Unincorporatede association, we have dropped it totally and do not wish to come back to such a legally complex process Regards Kavouss 2015-10-01 16:11 GMT+02:00 James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>>: It was one of the core components of the 2nd draft report. And we have received feedback on the SMCM which of which it is a component of, while I don’t feel we should discuss it directly its definintly a current issue. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Kavouss Arasteh Date: Thursday 1 October 2015 15:05 To: "Chartier, Mike S" Cc: "Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>)" Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear Mike We have not agreed that it is current subject. Who has so decided? Regrards Kavouss 2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>>: Kavouss, “unincorporated association” is the current proposal, so definitely not abandoned. Mike 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 Rosemary E. Fei Sent: Thursday, October 1, 2015 4:44 AM To: 'Kavouss Arasteh' Cc: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear Kavouss: Since it is a sensitive point, please let me clarify that I was merely letting the list know where it can find the answer to a narrow question about unincorporated associations that has been asked and answered before, and which came up in an email thread today. I am certainly not proposing that the CCWG consider (or reconsider) anything, if that’s what you mean by “coming back” -- such a proposal would exceed my remit from the CCWG as I understand it. I would not insert myself into the CCWG’s discussions in that way. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>, and delete all copies of this message and its attachments, if any. Thank you. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Thursday, October 01, 2015 1:35 AM To: Rosemary E. Fei Cc: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Rosemary Are you coming back to "a California unincorporated association " again??? We have abadonned that : Regards Kavouss ( 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>: Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel’s Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 01/10/2015 15:27, James Gannon wrote:
Kavouss, I refer you to paragraph 306 of our 2nd draft proposal which states:
As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets.
So it is clear that we have not dropped unincorporated association totally as the SMCM would be required to be an unincorporated association.
I hope that makes things clearer as to what I am referring to.
I think there is a simple miscommunication here. Our first reference model was Empowered SOACs as Unincorporated Associations. This would require turning the SOACs into UAs. That was problematic. We dropped it. It's not coming back. Our current reference model is the Single Member. This wouldn't require the SOACs to change at all. Californian law may deem the Single Member to be considered a UA in itself, but this is just a matter of statutory construction. The Single Member has no registration or reporting requirements, no need for officers, directors, assets etc. It is simply a legal notion. So there's really no need to focus on the fact that a lawyer would construe the Single Member as a UA, because that doesn't imply what people would think it implies. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Thanks Malcolm, very helpful. Regards, Keith -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Thursday, October 01, 2015 10:39 AM To: James Gannon; Kavouss Arasteh Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation On 01/10/2015 15:27, James Gannon wrote:
Kavouss, I refer you to paragraph 306 of our 2nd draft proposal which states:
As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets.
So it is clear that we have not dropped unincorporated association totally as the SMCM would be required to be an unincorporated association.
I hope that makes things clearer as to what I am referring to.
I think there is a simple miscommunication here. Our first reference model was Empowered SOACs as Unincorporated Associations. This would require turning the SOACs into UAs. That was problematic. We dropped it. It's not coming back. Our current reference model is the Single Member. This wouldn't require the SOACs to change at all. Californian law may deem the Single Member to be considered a UA in itself, but this is just a matter of statutory construction. The Single Member has no registration or reporting requirements, no need for officers, directors, assets etc. It is simply a legal notion. So there's really no need to focus on the fact that a lawyer would construe the Single Member as a UA, because that doesn't imply what people would think it implies. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 much better than my own explanation. We should outsource our comms to Malcolm! -James On 01/10/2015 15:49, "Drazek, Keith" <kdrazek@verisign.com> wrote:
Thanks Malcolm, very helpful.
Regards, Keith
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Thursday, October 01, 2015 10:39 AM To: James Gannon; Kavouss Arasteh Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation
On 01/10/2015 15:27, James Gannon wrote:
Kavouss, I refer you to paragraph 306 of our 2nd draft proposal which states:
As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets.
So it is clear that we have not dropped unincorporated association totally as the SMCM would be required to be an unincorporated association.
I hope that makes things clearer as to what I am referring to.
I think there is a simple miscommunication here.
Our first reference model was Empowered SOACs as Unincorporated Associations. This would require turning the SOACs into UAs. That was problematic. We dropped it. It's not coming back.
Our current reference model is the Single Member. This wouldn't require the SOACs to change at all. Californian law may deem the Single Member to be considered a UA in itself, but this is just a matter of statutory construction. The Single Member has no registration or reporting requirements, no need for officers, directors, assets etc. It is simply a legal notion. So there's really no need to focus on the fact that a lawyer would construe the Single Member as a UA, because that doesn't imply what people would think it implies.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
If he could cut the length of his contributions :-)-O But seriously, as we are all in agreement that we need to sell our product much better, ie spin this professionally, why not have him and Kieren sit down together and see if we can't do this "in house"? el On 2015-10-01 16:55, James Gannon wrote: [...]
We should outsource our comms to Malcolm! [...]
Hello Malcolm, Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below: "... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...." Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 1 Oct 2015 15:39, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 01/10/2015 15:27, James Gannon wrote:
Kavouss, I refer you to paragraph 306 of our 2nd draft proposal which states:
As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets.
So it is clear that we have not dropped unincorporated association totally as the SMCM would be required to be an unincorporated association.
I hope that makes things clearer as to what I am referring to.
I think there is a simple miscommunication here.
Our first reference model was Empowered SOACs as Unincorporated Associations. This would require turning the SOACs into UAs. That was problematic. We dropped it. It's not coming back.
Our current reference model is the Single Member. This wouldn't require the SOACs to change at all. Californian law may deem the Single Member to be considered a UA in itself, but this is just a matter of statutory construction. The Single Member has no registration or reporting requirements, no need for officers, directors, assets etc. It is simply a legal notion. So there's really no need to focus on the fact that a lawyer would construe the Single Member as a UA, because that doesn't imply what people would think it implies.
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On 01/10/2015 17:20, Seun Ojedeji wrote:
Hello Malcolm,
Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below:
"... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...."
Legal person-hood is not required of the SOACs in the SMM: our counsel have been quite clear on that. Californian law would recognise the Single Member as having legal personality. But it still doesn't need any of the normal accoutrements of artificial persons (such as registration, officers, etc) that might otherwise make this problematic. I hope that is now clear.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 1 Oct 2015 15:39, "Malcolm Hutty" <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:
On 01/10/2015 15:27, James Gannon wrote: > Kavouss, > I refer you to paragraph 306 of our 2nd draft proposal which states: > > As required by law, the Sole Member in the Community Mechanism as > Sole Member Model would be a legal person created through the ICANN > Bylaws as an unincorporated association. The Community Mechanism as > Sole Member Model would rely on direct participation by SOs and ACs > in this sole member for exercise of community powers but would not > require any of them to have legal personhood. The Sole Member would > have no officers or directors and no assets. > > So it is clear that we have not dropped unincorporated association > totally as the SMCM would be required to be an unincorporated association. > > I hope that makes things clearer as to what I am referring to.
I think there is a simple miscommunication here.
Our first reference model was Empowered SOACs as Unincorporated Associations. This would require turning the SOACs into UAs. That was problematic. We dropped it. It's not coming back.
Our current reference model is the Single Member. This wouldn't require the SOACs to change at all. Californian law may deem the Single Member to be considered a UA in itself, but this is just a matter of statutory construction. The Single Member has no registration or reporting requirements, no need for officers, directors, assets etc. It is simply a legal notion. So there's really no need to focus on the fact that a lawyer would construe the Single Member as a UA, because that doesn't imply what people would think it implies.
-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
This has echoes of how I entered the discussion a month or two back . . . I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute. As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members. The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity. This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association. Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list.
Hello Malcolm,
Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below:
"... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...."
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
This is not limited to California. There are a number of US states where an unincorporated association is a legal person. There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts. So the etymology is not dispositive. Common law is also a bit of a misnomer as used here. Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws. There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan. As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.) It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant. What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions. US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types. Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons. Greg On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel@channelisles.net> wrote:
This has echoes of how I entered the discussion a month or two back . . .
I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute.
As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members.
The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity.
This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association.
Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list.
Hello Malcolm,
Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below:
"... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...."
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear James , Thank you very much for the message. NO THAT IS NOT THE CASE. iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated Association in BA as the Lawyers mentioned we could get ride of that complex issuer. Pls read the outcome of our meeting. Regards Kavouss 2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:
This is not limited to California. There are a number of US states where an unincorporated association is a legal person. There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts. So the etymology is not dispositive.
Common law is also a bit of a misnomer as used here. Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws. There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan. As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.)
It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant. What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions. US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types. Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons.
Greg
On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel@channelisles.net> wrote:
This has echoes of how I entered the discussion a month or two back . . .
I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute.
As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members.
The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity.
This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association.
Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list.
Hello Malcolm,
Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below:
"... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...."
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Just to clarify what appears to be a misunderstanding and to echo Rosemary’s earlier email: The Sole Member would need legal personhood as we have described and as the Second Proposal reflects. The most straightforward way to have legal personhood is as an unincorporated association. This is a fairly simple matter that would be handled in ICANN’s bylaws. We discussed this in Paris at the time the Sole Member idea was described. And the Second Proposal accurately describes. HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Thursday, October 01, 2015 3:53 PM To: Greg Shatan Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear James , Thank you very much for the message. NO THAT IS NOT THE CASE. iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated Association in BA as the Lawyers mentioned we could get ride of that complex issuer. Pls read the outcome of our meeting. Regards Kavouss 2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: This is not limited to California. There are a number of US states where an unincorporated association is a legal person. There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts. So the etymology is not dispositive. Common law is also a bit of a misnomer as used here. Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws. There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan. As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.) It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant. What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions. US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types. Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons. Greg On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote: This has echoes of how I entered the discussion a month or two back . . . I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute. As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members. The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity. This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association. Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list. Hello Malcolm, Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below: "... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...." Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=rr-OlWqWf6LCWed23BEHocUHNszXLPrUFl-fq1CQSRw&s=1G-77pfTS54U0FJErhjoPMk1UEe-vwQVQ5BfcGnrdVQ&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=rr-OlWqWf6LCWed23BEHocUHNszXLPrUFl-fq1CQSRw&s=1G-77pfTS54U0FJErhjoPMk1UEe-vwQVQ5BfcGnrdVQ&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Thanks Holly and Rosemary. That is my recollection and understanding as well. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Thursday, October 01, 2015 3:59 PM To: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Just to clarify what appears to be a misunderstanding and to echo Rosemary’s earlier email: The Sole Member would need legal personhood as we have described and as the Second Proposal reflects. The most straightforward way to have legal personhood is as an unincorporated association. This is a fairly simple matter that would be handled in ICANN’s bylaws. We discussed this in Paris at the time the Sole Member idea was described. And the Second Proposal accurately describes. HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Thursday, October 01, 2015 3:53 PM To: Greg Shatan Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Dear James , Thank you very much for the message. NO THAT IS NOT THE CASE. iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated Association in BA as the Lawyers mentioned we could get ride of that complex issuer. Pls read the outcome of our meeting. Regards Kavouss 2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: This is not limited to California. There are a number of US states where an unincorporated association is a legal person. There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts. So the etymology is not dispositive. Common law is also a bit of a misnomer as used here. Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws. There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan. As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.) It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant. What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions. US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types. Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons. Greg On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote: This has echoes of how I entered the discussion a month or two back . . . I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute. As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members. The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity. This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association. Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list. Hello Malcolm, Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below: "... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...." Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=rr-OlWqWf6LCWed23BEHocUHNszXLPrUFl-fq1CQSRw&s=1G-77pfTS54U0FJErhjoPMk1UEe-vwQVQ5BfcGnrdVQ&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=rr-OlWqWf6LCWed23BEHocUHNszXLPrUFl-fq1CQSRw&s=1G-77pfTS54U0FJErhjoPMk1UEe-vwQVQ5BfcGnrdVQ&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Hello Holly, Thanks for your response, as it confirms my understanding as well. So its still requires legal personhood but as unincorporated association. I guess Malcolm's comments may have been what further got me confused. Regards On Thu, Oct 1, 2015 at 8:59 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:
Just to clarify what appears to be a misunderstanding and to echo Rosemary’s earlier email: The Sole Member would need legal personhood as we have described and as the Second Proposal reflects. The most straightforward way to have legal personhood is as an unincorporated association. This is a fairly simple matter that would be handled in ICANN’s bylaws. We discussed this in Paris at the time the Sole Member idea was described. And the Second Proposal accurately describes.
*HOLLY J. GREGORY *Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice
*Sidley Austin LLP* 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com www.sidley.com
[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Thursday, October 01, 2015 3:53 PM *To:* Greg Shatan *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
Dear James ,
Thank you very much for the message.
NO THAT IS NOT THE CASE.
iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated Association in BA as the Lawyers mentioned we could get ride of that complex issuer.
Pls read the outcome of our meeting.
Regards
Kavouss
2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:
This is not limited to California. There are a number of US states where an unincorporated association is a legal person. There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts. So the etymology is not dispositive.
Common law is also a bit of a misnomer as used here. Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws. There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan. As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.)
It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant. What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions. US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types. Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons.
Greg
On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel@channelisles.net> wrote:
This has echoes of how I entered the discussion a month or two back . . .
I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute.
As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members.
The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity.
This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association.
Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list.
Hello Malcolm,
Are you certain there is no lega person-hood required because that section referenced by James seem to imply that. I quote a specific section below:
"... the Community Mechanism as Sole Member Model would be a *legal person* created through the ICANN Bylaws as an unincorporated association...."
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Hi, Considering that every word could be important in legal world, could you confirm if the "be" missing in the section below is a mistake and if so can it be updated. "....*would not *be* liable*...." Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 1 Oct 2015 01:25, "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear CCWG:
We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21.
https://community.icann.org/pages/viewpage.action?pageId=54695403
See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
*CCWG Legal Counsel's Response*: *If the sole member is* *formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605.*
*Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants.*
While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful.
Rosemary
Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com www.adlercolvin.com
_____________________________
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Perez Galindo, Rafael *Sent:* Wednesday, September 30, 2015 2:26 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Regarding GAC participation
Good morning/afternoon/night to All
In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on.
Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "*[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.".*
In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM).
Looking forward to receiving the legal advice, thank you and best regards
Rafael
GAC_SPAIN
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Yes, thank you for catching that, Seun. The word “be” is missing, as you indicated. I hope staff can correct the posted document. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Thursday, October 01, 2015 9:12 AM To: Rosemary E. Fei Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation Hi, Considering that every word could be important in legal world, could you confirm if the "be" missing in the section below is a mistake and if so can it be updated. "....would not *be* liable...." Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 1 Oct 2015 01:25, "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> wrote: Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I’m not sure when this got posted, but I think it was on the “last modified” date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel’s Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder’s mere “alter ego”). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (11)
-
Chartier, Mike S -
Dr Eberhard W Lisse -
Drazek, Keith -
Greg Shatan -
Gregory, Holly -
James Gannon -
Kavouss Arasteh -
Malcolm Hutty -
Nigel Roberts -
Rosemary E. Fei -
Seun Ojedeji