Thanks for this Bruce, am I correct in assuming that the IO could therefore be and 'adjunct' to one of our selected (I trust) model as a primary reference model in our next PC?? On 17/07/2015 10:18 am, "Malcolm Hutty" <malcolm@linx.net> wrote:

I would like to see this idea considered.

I can see issues with it and would not wholeheartedly endorse it at this stage; I think it needs further development. But it is a very constructive line of enquiry and should not be ruled out of order merely because it doesn't relate primarily to Section 5.

On 17 Jul 2015, at 10:03, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

[Disclaimer: the following is a personal view, and not the view of the Board or any other Board member).

During the discussion today on the three models – Empowered SO/AC membership model, Empowered SO/AC Designator Model, Community Mechanism as sole member model.

I noted that one of the ideas we used in the new gTLD program was the concept of an “Independent Objector”. The independent objector does not act on behalf of any particular person or entities but acts solely in the best interests of the public.

From my perspective the bylaws should “empower” the community as have been proposed by the CCWG.

My intervention is purely about an enforcement last resort.

The group is considering using a panel of independent people (IRP panel) to determine whether the Board has followed the bylaws. The group is also considering making the decisions of this panel to be binding.

I have heard there is a concern that the Board may not follow the result of an IRP. Thus the proposal is some form of formal member would then be able to take ICANN to court meet its bylaws requirements around the IRP. There are lots of discussions about how to somehow turn the SO/ACs into members to be able to have legal enforcement powers.

My suggestion was simply to create another form of “independent” person that would have legal standing and would be a member. That independent person could then take legal action against ICANN if it didn’t follow the decision of the IRP where it is clearly not in the global public interest. The independent person would be able to take submissions from the SOs and ACs and any member of the public in making their decision. It is not dependent on simply those that are members of an SO and AC being able to get their SO/AC to take action through one of the proposed models, but could take into account any member of the public (including ccTLD managers that are not members of the ccNSO).

Regards,

Bruce Tonkin

(personal comment)

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But Greg, is it not correct that the same powers can be placed in the hands of the community with the empowered designator model? Cheers, Chris

On 17 Jul 2015, at 18:47 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Bruce,

I think you are misinterpreting the reason(s) for the creation of a formal member (or members). It is not primarily to take ICANN to court, and it is not primarily to have legal enforcement powers. The reason is far more fundamental than that. Speaking from a US law perspective (though I believe this to be more widespread), Members have a legally distinct role in a nonprofit corporation, particularly with regard to authority and decision-making vis a vis the Board. It really goes to the ability to have the powers that the CCWG is seeking to place in the hands of the community, and to have these powers as a matter of right. Members must be legal persons. This legal personhood also gives members the capacity to go to court; but that is hardly the reason for a member or members to be created.

Given the powers that a member of a non-profit corporation has, putting these powers in the hands of an independent person, without control by or accountability to the SO/ACs or the community as a whole, seems inappropriate and raises great concerns.

Greg

On Fri, Jul 17, 2015 at 4:03 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello All,

[Disclaimer: the following is a personal view, and not the view of the Board or any other Board member).

During the discussion today on the three models – Empowered SO/AC membership model, Empowered SO/AC Designator Model, Community Mechanism as sole member model.

I noted that one of the ideas we used in the new gTLD program was the concept of an “Independent Objector”. The independent objector does not act on behalf of any particular person or entities but acts solely in the best interests of the public.

From my perspective the bylaws should “empower” the community as have been proposed by the CCWG.

My intervention is purely about an enforcement last resort.

The group is considering using a panel of independent people (IRP panel) to determine whether the Board has followed the bylaws. The group is also considering making the decisions of this panel to be binding.

I have heard there is a concern that the Board may not follow the result of an IRP. Thus the proposal is some form of formal member would then be able to take ICANN to court meet its bylaws requirements around the IRP. There are lots of discussions about how to somehow turn the SO/ACs into members to be able to have legal enforcement powers.

My suggestion was simply to create another form of “independent” person that would have legal standing and would be a member. That independent person could then take legal action against ICANN if it didn’t follow the decision of the IRP where it is clearly not in the global public interest. The independent person would be able to take submissions from the SOs and ACs and any member of the public in making their decision. It is not dependent on simply those that are members of an SO and AC being able to get their SO/AC to take action through one of the proposed models, but could take into account any member of the public (including ccTLD managers that are not members of the ccNSO).

Regards,

Bruce Tonkin

(personal comment)

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Hello Greg,

...

Members have a legally distinct role in a nonprofit corporation, particularly with regard to authority and decision-making vis a vis the Board. 

Yes I get that. Members have a series of statutory rights under the law of where the membership organization is incorporated. However my understanding is that we are actually explicitly enshrining the powers that the community seeks into the bylaws. So then surely the issue is then whether ICANN is adhering to the new bylaws. The IRP is a mechanism to adjudicate if there is a dispute about whether the Board is adhering to these bylaws. I hope that there are also some lighter weight mechanisms - reconsideration/ombudsman as a step before needing to use an IRP (which currently seems to cost hundreds of thousands of dollars and that is just the panel's costs, and take years to resolve). Then there is a need to ensure that the Board abides by the outcome of the IRP. My proposal was how to deal with the unlikely situation where the Board goes against an IRP panel. Regards, Bruce Tonkin

Hello Greg,

...

It's not just the statutory rights.  It's the fundamental fact that (and I am oversimplifying here) the Members are "at the top of the totem pole" in a membership non-profit corporation (at least under US law).

Yes - I understand the simplicity of having legal persons as members and relying on California law. It is a well established model that works particularly well within a particular national jurisdiction. This is why many ccTLDs are structured as membership organisations where the majority of members are legal persons within the same country. In a particular national jurisdiction - the national government can create its own laws with respect to how it interacts with its ccTLD (ie the Government is not usually a "member" of the ccTLD). However on the other hand we are trying to create an organization that is genuinely international in nature and multi-stakeholder - where the stakeholders include private and public sector participants from all nations. Using the bylaws and the existing SO/AC structures allows us to retain the notion of an organization that is not particularly dependent on its primary accountability mechanisms in being located under any particular set of laws. So from my perspective - I like the concept of using bylaws to create the specific powers that the community wants, using IRP to adjudicate disputes under these bylaws, and having some simple last resort mechanisms if the decision of the IRP is not implemented. The bylaws should make it clear that the organization is operated for the global public benefit, and that the SOs/ACs are proxies for communicating the wishes of the global public interest. Ie I don’t think ICANN is created to meet the needs of the SOs and/or ACs as direct members, it is created to meet the needs of the global public (ie the several billion legal persons on this planet). The modeI I often refer to is the UDRP model - for trademark disputes around domain names - that is an example of a good scalable solution. It is not particularly dependent on the national laws of the USA (although of course the registrars agreements are with ICANN located in the USA). All registrants agree via their contract with registrars (which can be located in any national jurisdiction) to be subject to UDRP, and the UDRP panels are not tied to any particular jurisdiction. Complainants can also use their local national laws if they don’t agree with the decision of the UDRP. Regards, Bruce Tonkin That said, focusing more narrowly on how to enforce an IRP is worth doing.  But I don't think that using the membership concept to do it is advisable.  I also don't think it makes sense to eliminate the overall concept of community-as-member. In other words, I am not discouraging discussion of a mechanism to enforce the IRP, in addition to the potential capacity of the member or members to do so. Greg On Fri, Jul 17, 2015 at 4:54 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote: Hello Greg,

...

  Members have a legally distinct role in a nonprofit corporation, particularly with regard to authority and decision-making vis a vis the Board. 

Yes I get that.   Members have a series of statutory  rights under the law of where the membership organization is incorporated. However my understanding is that we are actually explicitly enshrining the powers that the community seeks into the bylaws. So then surely the issue is then whether ICANN is adhering to the new bylaws. The IRP is a mechanism to adjudicate if there is a dispute about whether the Board is adhering to these bylaws.   I hope that there are also some lighter weight mechanisms - reconsideration/ombudsman as a step before needing to use an IRP (which currently seems to cost hundreds of thousands of dollars  and that is just the panel's costs, and take years to resolve). Then there is a need to ensure that the Board abides by the outcome of the IRP. My proposal was how to deal with the unlikely situation where the Board goes against an IRP panel. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Bruce, That bypasses the community structures entirely, as well as those communities that are not composed of legal persons. For instance, all of those pesky non-contracted parties in the GNSO's Commercial Stakeholder Group and Non-Commercial Stakeholder Group, and also the ALAC (and SSAC and RSSAC, for that matter). The "directly affected parties" language (and your list) tends to exclude these groups, but they cannot be excluded from the multistakeholder model or the community. Greg On Fri, Jul 17, 2015 at 4:56 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Also even apart from the language used in the bylaws, ICANN can also agree some of the powers via contracts with directly affected parties - e.g. gTLD registries, ccTLD managers, and gTLD registrars amongst others.

Regards, Bruce Tonkin

-----Original Message----- From: Bruce Tonkin Sent: Friday, 17 July 2015 10:55 AM To: Accountability Cross Community Subject: RE: [CCWG-ACCT] Concept of some form of "independent" member

Hello Greg,

...

...

Members have a legally distinct role in a nonprofit corporation, particularly with regard to authority and decision-making vis a vis the Board.

Yes I get that. Members have a series of statutory rights under the law of where the membership organization is incorporated.

However my understanding is that we are actually explicitly enshrining the powers that the community seeks into the bylaws.

So then surely the issue is then whether ICANN is adhering to the new bylaws.

The IRP is a mechanism to adjudicate if there is a dispute about whether the Board is adhering to these bylaws. I hope that there are also some lighter weight mechanisms - reconsideration/ombudsman as a step before needing to use an IRP (which currently seems to cost hundreds of thousands of dollars and that is just the panel's costs, and take years to resolve).

Then there is a need to ensure that the Board abides by the outcome of the IRP.

My proposal was how to deal with the unlikely situation where the Board goes against an IRP panel.

Regards, Bruce Tonkin

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On 17 Jul 2015, at 11:04, Greg Shatan <gregshatanipc@gmail.com> wrote:

The "directly affected parties" language (and your list) tends to exclude these groups, but they cannot be excluded from the multistakeholder model or the community

That's easily fixed, and we did so in WP2 when designing IRP improvements: just change the language of "directly affected parties" to "materially affected parties". Malcolm.

Natural persons (humans) are legal persons Sent with Good (www.good.com) ________________________________ From: accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts Sent: Friday, July 17, 2015 05:51:22 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Concept of some form of "independent" member Greg I think this is incorrect. I find it hard to imagine a corporation (and, particularly a non-profit corporation) which is required by law to restrict membership to legal persons in this way, that is to *require* members to be legal persons. I cannot believe US law is so fundamentally different here -- members of a corporation may normally be either natural persons or legal persons unless there are explicit restrictions in the Articles, which is a matter of choice, not compulsion. (I can imagine a non-profit CHOOSING to restrict membership to one or the other but I can't imagine any statutory requirement of this nature.) A trade association MIGHT restrict membership to legal persons: e.g. the Association of Incorporated Widget Makers (fictitious) may only allow incorporated makes of widgets; however it would be less unexpected to see non-profits expecting members to be natural persons only (e.g. the American Radio Relay League see http://www.arrl.org/arrl-by-laws). Can you expand on this please? On 17/07/15 09:47, Greg Shatan wrote:

hands of the community, and to have these powers as a matter of right. Members must be legal persons.

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Whilst I hesitate to use Wikiepedia as authority, it says "Natural person From Wikipedia, the free encyclopedia This article may be expanded with text translated from the corresponding article in German. (October 2014) Click [show] for important translation instructions. [show] In jurisprudence, a natural person is a real human being, as opposed to a legal person, which may be a private (i.e., business entity or non-governmental organization) or public (i.e., government) organization. In many cases, fundamental human rights are implicitly granted only to natural persons. For example, the Nineteenth Amendment to the United States Constitution, which states a person cannot be denied the right to vote based on gender, or Section Fifteen of the Canadian Charter of Rights and Freedoms, which guarantees equality rights, apply to natural persons only. Another example of the distinction between natural and legal persons is that a natural person can hold public office, but a corporation cannot. A corporation or non-governmental organization can, however, file a lawsuit or own property as a legal person. " PS: Incidentally, if your use of the term is correct in your jurisdiction, then what does the adding the word "legal" add to understanding? Surely the correct term is simply "person".

Yes. A natural person (human ) is a subset of legal person. Sent with Good (www.good.com) ________________________________ From: accountability-cross-community-bounces@icann.org on behalf of Thomas Rickert Sent: Friday, July 17, 2015 06:34:35 AM To: Nigel Roberts Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Concept of some form of "independent" member I can confirm this is true at least for the German jurisdiction. Thomas

Am 17.07.2015 um 13:28 schrieb Nigel Roberts <nigel@channelisles.net>:

Whilst I hesitate to use Wikiepedia as authority, it says

"Natural person From Wikipedia, the free encyclopedia

This article may be expanded with text translated from the corresponding article in German. (October 2014) Click [show] for important translation instructions. [show]

In jurisprudence, a natural person is a real human being, as opposed to a legal person, which may be a private (i.e., business entity or non-governmental organization) or public (i.e., government) organization.

In many cases, fundamental human rights are implicitly granted only to natural persons. For example, the Nineteenth Amendment to the United States Constitution, which states a person cannot be denied the right to vote based on gender, or Section Fifteen of the Canadian Charter of Rights and Freedoms, which guarantees equality rights, apply to natural persons only. Another example of the distinction between natural and legal persons is that a natural person can hold public office, but a corporation cannot.

A corporation or non-governmental organization can, however, file a lawsuit or own property as a legal person.

"

PS: Incidentally, if your use of the term is correct in your jurisdiction, then what does the adding the word "legal" add to understanding? Surely the correct term is simply "person".

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Natural persons are legal persons, but so are entities recognized as legal persons (like corporations and unincorporated associations). Legal persons is the larger term; natural persons are a subset of legal persons. Hope that's clearer. Rosemary -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Friday, July 17, 2015 4:24 AM To: Holly Gregory Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Concept of some form of "independent" member Then we have a terminology issue as that is not my understanding. Can you take me to authority for your interpretation, please? A legal person that is /not/ a natural person (i.e. a corporation, or other "juristic person". This article seems to be of the same mind :- http://www.publishyourarticles.net/knowledge-hub/law/what-are-the-difference... On 17/07/15 12:13, Gregory, Holly wrote:

Natural persons (humans) are legal persons

Sent with Good (www.good.com) * * ---------------------------------------------------------------------- -- *From:* accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts *Sent:* Friday, July 17, 2015 05:51:22 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Concept of some form of "independent" member

Greg

I think this is incorrect. I find it hard to imagine a corporation (and, particularly a non-profit corporation) which is required by law to restrict membership to legal persons in this way, that is to *require* members to be legal persons.

I cannot believe US law is so fundamentally different here -- members of a corporation may normally be either natural persons or legal persons unless there are explicit restrictions in the Articles, which is a matter of choice, not compulsion.

(I can imagine a non-profit CHOOSING to restrict membership to one or the other but I can't imagine any statutory requirement of this nature.)

A trade association MIGHT restrict membership to legal persons: e.g. the Association of Incorporated Widget Makers (fictitious) may only allow incorporated makes of widgets; however it would be less unexpected to see non-profits expecting members to be natural persons only (e.g. the American Radio Relay League see http://www.arrl.org/arrl-by-laws).

Can you expand on this please?

On 17/07/15 09:47, Greg Shatan wrote:

...

hands of the community, and to have these powers as a matter of right. Members must be legal persons.

---

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In English Law, certainly not! They are something more akin to a partnership, in that they have no legal personality other than that of the natural persons who come together for a joint purpose, and have (in England) joint and several, unlimited legal liability. The clue is in the Latin root of the word corporation which, literally means "becoming a body". Thus anything unincorporated has not acquired legal personality. I have to say I've always been fascinated to read that there are actual towns and cities that do not exists as bodies corporate, but that's, I suppose, a rathole for a bar discussion. On 17/07/15 12:35, Dr Eberhard W Lisse wrote:

Are UAs legal persons?

el

On 2015-07-17 13:13 , Gregory, Holly wrote:

...

Natural persons (humans) are legal persons

Sent with Good (www.good.com) *

* ------------------------------------------------------------------------ *From:* accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts *Sent:* Friday, July 17, 2015 05:51:22 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Concept of some form of "independent" member

Greg

I think this is incorrect. I find it hard to imagine a corporation (and, particularly a non-profit corporation) which is required by law to restrict membership to legal persons in this way, that is to *require* members to be legal persons.

I cannot believe US law is so fundamentally different here -- members of a corporation may normally be either natural persons or legal persons unless there are explicit restrictions in the Articles, which is a matter of choice, not compulsion.

(I can imagine a non-profit CHOOSING to restrict membership to one or the other but I can't imagine any statutory requirement of this nature.)

A trade association MIGHT restrict membership to legal persons: e.g. the Association of Incorporated Widget Makers (fictitious) may only allow incorporated makes of widgets; however it would be less unexpected to see non-profits expecting members to be natural persons only (e.g. the American Radio Relay League see http://www.arrl.org/arrl-by-laws).

Can you expand on this please?

On 17/07/15 09:47, Greg Shatan wrote:

...

hands of the community, and to have these powers as a matter of right. Members must be legal persons.

---

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I think we need to be very clear on terminology and use. ICANN is an international, multistakeholder organisation, not an American one, despite having its seat in one of the 50 states of the USA. Your use of "legal person" to include "natural person" is a term-of-art. What we would say is that the two terms are mutually exclusive, but both legal and natural persons have legal personality (the test of which is, perhaps, "to be able to sue and be sued in their own name) For a cautionary tale, if it still existed, I would take you to the transcript for the very first meeting of the DNSO (i.e. the GNSO+CCNSO) in 1999 in Santiago de Chile. The meeting descended into farce as follows. Member: "Lets table this resolution" Chairman: "Is that agreed?" All: "Yes" Chairman: "Next business" 2nd Member: "Wait a minute, we were going to table this resolution" Chairman: "We just did" 2nd Member: "No we didn't, you just moved to next business without tabling the resolution. There was no vote". <REPEAT AD NAUSEAM UNTIL> Esther Dyson (sitting barefoot on the floor in the audience) "You do realise that that 'table' means to put ON the table to Europeans, and to take OFF the table to Americans . . . ." On 17/07/15 12:43, Gregory, Holly wrote:

U.S. Law perspective

Sent with Good (www.good.com) * * ------------------------------------------------------------------------ *From:* accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts *Sent:* Friday, July 17, 2015 06:41:58 AM *To:* Dr Eberhard W Lisse *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Concept of some form of "independent" member

In English Law, certainly not! They are something more akin to a partnership, in that they have no legal personality other than that of the natural persons who come together for a joint purpose, and have (in England) joint and several, unlimited legal liability.

The clue is in the Latin root of the word corporation which, literally means "becoming a body". Thus anything unincorporated has not acquired legal personality.

I have to say I've always been fascinated to read that there are actual towns and cities that do not exists as bodies corporate, but that's, I suppose, a rathole for a bar discussion.

On 17/07/15 12:35, Dr Eberhard W Lisse wrote:

...

Are UAs legal persons?

el

On 2015-07-17 13:13 , Gregory, Holly wrote:

...

Natural persons (humans) are legal persons

Sent with Good (www.good.com <http://www.good.com>) *

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Greg

I think this is incorrect. I find it hard to imagine a corporation (and, particularly a non-profit corporation) which is required by law to restrict membership to legal persons in this way, that is to *require* members to be legal persons.

I cannot believe US law is so fundamentally different here -- members of a corporation may normally be either natural persons or legal persons unless there are explicit restrictions in the Articles, which is a matter of choice, not compulsion.

(I can imagine a non-profit CHOOSING to restrict membership to one or the other but I can't imagine any statutory requirement of this nature.)

A trade association MIGHT restrict membership to legal persons: e.g. the Association of Incorporated Widget Makers (fictitious) may only allow incorporated makes of widgets; however it would be less unexpected to see non-profits expecting members to be natural persons only (e.g. the American Radio Relay League seehttp://www.arrl.org/arrl-by-laws).

Can you expand on this please?

On 17/07/15 09:47, Greg Shatan wrote:

...

hands of the community, and to have these powers as a matter of right. Members must be legal persons.

---

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Well, I've looked at the sections of California Law that we have been referred to. I see nothin in the California law that contradicts what I wrote below, with the single exception that, as previously noted, California statute adds the gloss of a limited version of limited liability to the common-law concept of unincorporated associations. Do you not agree that the reality is that a California UA does NOT have legal personality but DOES have a form of limited liability granted by statute?

OK.. this is interesting. It has the limited liability you previously talked about, agreed. I've read the section. But if it has legal personality, it is then a body corporate, and is no longer "unincorporated", surely? I'd like you, please, to point me to the section in the statute that states these kind of associations have legal personality, and construe it for me, please, since I'm obvious being dim. (It's quite possible we have different understandings of the term "legal personality" here.) On 17/07/15 14:06, Greg Shatan wrote:

Nigel,

Disagree in part. A California UA does have legal personality and does have limited liability.

Greg

On Fri, Jul 17, 2015 at 8:58 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:

Well, I've looked at the sections of California Law that we have been referred to.

I see nothin in the California law that contradicts what I wrote below, with the single exception that, as previously noted, California statute adds the gloss of a limited version of limited liability to the common-law concept of unincorporated associations.

Do you not agree that the reality is that a California UA does NOT have legal personality but DOES have a form of limited liability granted by statute?

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Clearly so. But I'm failing to see what the distinction is between a corporation, and an unincorporated body having all the characteristics of a body corporate (i.e. limited liability and separate legal personality). But this is perhaps a debate for off-list. On 07/20/2015 04:54 PM, Burr, Becky wrote:

Nigel, US law on unincorporated bodies is very different from UK law.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

On 7/17/15, 3:11 PM, "Nigel Roberts" <nigel@channelisles.net> wrote:

...

OK.. this is interesting.

It has the limited liability you previously talked about, agreed. I've read the section.

But if it has legal personality, it is then a body corporate, and is no longer "unincorporated", surely?

I'd like you, please, to point me to the section in the statute that states these kind of associations have legal personality, and construe it for me, please, since I'm obvious being dim. (It's quite possible we have different understandings of the term "legal personality" here.)

On 17/07/15 14:06, Greg Shatan wrote:

...

Nigel,

Disagree in part. A California UA does have legal personality and does have limited liability.

Greg

On Fri, Jul 17, 2015 at 8:58 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:

Well, I've looked at the sections of California Law that we have been referred to.

I see nothin in the California law that contradicts what I wrote below, with the single exception that, as previously noted, California statute adds the gloss of a limited version of limited liability to the common-law concept of unincorporated associations.

Do you not agree that the reality is that a California UA does NOT have legal personality but DOES have a form of limited liability granted by statute?

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Dear Bruce This discussion is not productive .It may mislead every one The independent objector is a process that exist and has nothing to do with IRP I suggest that we do not open a new chapter There is no direct link between independent objector and community mechanism as sole member Kavouss 2015-07-20 18:41 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:

A California unincorporated association does not have all the characteristics of a "body corporate" -- it really only has the two you mention: limited liability and legal personality, pursuant to the California Corporations Code (which also sets out the law on partnerships, so it's not just about corporations).

There are a number of ways in which a California UA differs from a corporation: it doesn't need to reserve a name or file incorporation papers or go through any process with the state to come into existence (it can simply "register," but that is not a requirement), it doesn't need formal articles of incorporation or bylaws, it has more limited recordkeeping and reporting requirements, etc.

Greg

On Mon, Jul 20, 2015 at 12:17 PM, Nigel Roberts <nigel@channelisles.net> wrote:

...

Clearly so.

But I'm failing to see what the distinction is between a corporation, and an unincorporated body having all the characteristics of a body corporate (i.e. limited liability and separate legal personality).

But this is perhaps a debate for off-list.

On 07/20/2015 04:54 PM, Burr, Becky wrote:

...

Nigel, US law on unincorporated bodies is very different from UK law.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

On 7/17/15, 3:11 PM, "Nigel Roberts" <nigel@channelisles.net> wrote:

OK.. this is interesting.

...

It has the limited liability you previously talked about, agreed. I've read the section.

But if it has legal personality, it is then a body corporate, and is no longer "unincorporated", surely?

I'd like you, please, to point me to the section in the statute that states these kind of associations have legal personality, and construe it for me, please, since I'm obvious being dim. (It's quite possible we have different understandings of the term "legal personality" here.)

On 17/07/15 14:06, Greg Shatan wrote:

...

Nigel,

Disagree in part. A California UA does have legal personality and does have limited liability.

Greg

On Fri, Jul 17, 2015 at 8:58 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:

Well, I've looked at the sections of California Law that we have been referred to.

I see nothin in the California law that contradicts what I wrote below, with the single exception that, as previously noted, California statute adds the gloss of a limited version of limited liability to the common-law concept of unincorporated associations.

Do you not agree that the reality is that a California UA does NOT have legal personality but DOES have a form of limited liability granted by statute?

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On 17 Jul 2015, at 13:35, Dr Eberhard W Lisse <el@lisse.NA> wrote:

Are UAs legal persons?

In California law, yes. We have discussed this many times and had very clear advice from our counsel. In other jurisdictions, not always. Not in mine (UK/England & Wales). But ICANN is based in California, so that's what matters.

el

...

On 2015-07-17 13:13 , Gregory, Holly wrote: Natural persons (humans) are legal persons

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* ------------------------------------------------------------------------ *From:* accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts *Sent:* Friday, July 17, 2015 05:51:22 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Concept of some form of "independent" member

Greg

I think this is incorrect. I find it hard to imagine a corporation (and, particularly a non-profit corporation) which is required by law to restrict membership to legal persons in this way, that is to *require* members to be legal persons.

I cannot believe US law is so fundamentally different here -- members of a corporation may normally be either natural persons or legal persons unless there are explicit restrictions in the Articles, which is a matter of choice, not compulsion.

(I can imagine a non-profit CHOOSING to restrict membership to one or the other but I can't imagine any statutory requirement of this nature.)

A trade association MIGHT restrict membership to legal persons: e.g. the Association of Incorporated Widget Makers (fictitious) may only allow incorporated makes of widgets; however it would be less unexpected to see non-profits expecting members to be natural persons only (e.g. the American Radio Relay League see http://www.arrl.org/arrl-by-laws).

Can you expand on this please?

...

On 17/07/15 09:47, Greg Shatan wrote:

hands of the community, and to have these powers as a matter of right. Members must be legal persons.

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Would have been too much work obviously to write "yes". el On 2015-07-17 13:47 , James Gannon wrote:

https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20o... <https://community.icann.org/download/attachments/52890082/REVISED Memo on Unincorporated Associations May 3, 2015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2>

-James

...

On 17 Jul 2015, at 13:35, Dr Eberhard W Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:

Are UAs legal persons?

el [...]

Great. We have now decisively established that UK law is not US law. And also that online legal resources are incomplete. Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Friday, July 17, 2015 7:57 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Concept of some form of "independent" member

From: Dr Eberhard W Lisse <el@lisse.NA> Would have been too much work obviously to write "yes".

el

Would have been an incorrect answer, even in California. From my research, it appears that a California UA - does NOT have legal personality - DOES have limited liability granted by statute. See http://www.nolo.com/legal-encyclopedia/what-an-unincorporated-nonprofit-asso ciation.html which states :-

The biggest drawback to the unincorporated nonprofit association, and the reason nonprofits often abandon this form in favor of a nonprofit corporation, is that it has no separate legal existence apart from its members. Because it is not respected as a separate legal entity, its members generally can be personally liable for its debts and liabilities. Some states, such as California, give some limited liability to nonprofit association members; but it's not as good as the protection obtainable from a nonprofit corporation. Moreover, unless your state law contains an "enabling statute" granting such rights entities, an unincorporated association cannot hold or receive property, or sign contracts, in its own name.

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And I just wanted to know if UA's (in the context being discussed) were included. el On 2015-07-17 14:12 , Chris Disspain wrote:

...

We have now decisively established that UK law is not US law.

Not sure we have consensus on that and nor have we received independent legal advice fro lawyers in both jurisdictions.

Cheers,

Chris

...

On 17 Jul 2015, at 22:06 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:

Great. We have now decisively established that UK law is not US law. And also that online legal resources are incomplete.

Paul Rosenzweig [...]