RES: Re: Final Consideration - Member of ALAC Election (Part 2)
[[--Translated text (es -> en)--]] Subject: RES: Re: Final Consideration - Member of ALAC Election (Part 2) From: vanda@uol.com.br Well, I believe can not be driven by LACRALO Chilean law or other national Laws! If the person has citizenship and is temporarily leaving in another country I see no reason to not allow the person to Participate. Even regarding regional balance in ICANN, citizenship is the MOST Combined With The critical issue to get another That demand " citizenship "Must the person in another country comprove leaving for more than 5 years! So people, lets be reasonable. If we will depend on Each country law, to Any decision, we will end With Each one voting based on ITS own laws. It from my view is crazy. Vanda ----- Mensagem Original ----- From: lac-discuss-es-bounces@atlarge-lists.icann.org [Mailto: lac-discuss-es-bounces@atlarge-lists.icann.org] Em nome JostbNL> Francisco Arce Posted in: Quarta-Feira, 15 August 2012 18:07 To: LACRALO Espaol, Silvia Vivanco, At-Large Staff Assunto: [lac-discuss-en] Fwd: Final Consideration - Elections for Member ALAC (Part 2) ---------- Forwarded message ---------- From: Maple JosFrancisco <josefranciscoarce@gmail.com> Date: August 15, 2012 17:05 Subject: Final Consideration - Member of ALAC Election (Part 2) To: LACRALO Espaol <lac-discuss-es@atlarge-lists.icann.org> It confuses two concepts: principal residence and domicile, the legislaciny Chilean jurisprudence have clarified and demarcated time. The * Art 59 of the Civil code defines * Chile * address * (not the residence) and defines residence as one of the components the home. The other elements of the home is the minimum of remain there (in residence). * The home is the residence, accompanied, real or presumably, the minimum to stay in it. Divdese in politician and civil. * * * * The case of the Chilean Supreme Court * (C Supreme December 24 1962, R, t 59, section 1, p 478) has discussed this topic. View Pgina 231: http://books.google.com.py/books?id=R40zBEfltIoC&pg=PA231&lpg=PA231&dq=juris prudence + Chile + home + and + & source = bl home & ots = ga4bUbvF2g & sig = O_YRLG yCBviqCmADShvER6gsvHQ & hl = en & sa = X & ei = CHwmUN_2KIja9ATh8IGQAQ & ved = 0CEUQ6AEwAQ # v = Onepage & q = law%% 20chilena% 20and% 20residencia 20domicilio & f = true) stating: * * * 1. Domicile, residence, habitacin, purple. * * A) You can not confuse the elements of domicile and residence, the first, which according to the civil code is the actual acompaada residence or presumptively the minimum to stay in it, is a valoracin jurdica defined by law Seala elements.In contrast, residence a mere matter of de facto relationship in the absence of definition legal, must be understood as natural and obvious meaning of the word, as acciny reside effect, ie, the fact of being in a seat particular location. * * In C Conception, April 28, 1964, R, t 61, sec 4, pg. 289 has pronounced setting: * * B) Civil Law, is the seat jurdico address of a person, and habitacin residence and are in fact a link between the person and the where she lives, ordinary or accidentally. * * * * 2) United Kingdom tax sharee'ah * The sharee'ah which is responsible for regulating the tax issue in the United Kingdom (Of which Scotland is a part) is also expressed in clear and distinguishing between home and residence. On the residence provides: UK residence * 2.2 * * There are Many Different Factors Which will determine Whether you are resident in the UK.With one exception (Explained in the next paragraph), it is not simply a question of the number of days you are Physically present in During's the UK tax year, although this is an Important consideration. * * The only occasion when to the number of days That You are Physically present in the UK will determine your residence status is when to you are here for 183 days or more During's tax year. If you are here for 183 days or more in a tax year, you are resident in the UK. There are no exceptions to this. * * You can Also be resident in the UK if you are present here for FEWER than 183 days in a tax year. This will depend on how long and how Often you are here, the purpose and pattern of your Presence and your connections to the UK. These might include the location of your family, your property, your your work life and social connections. * * Http://www.hmrc.gov.uk/cnr/hmrc6.pdf * * 3.2 What does ordinary residence mean? * * Ordinary residence is Different from residence. The ordinary word Indicates That your residence in the UK is typical for you and not casual. It is Important not to confuse ordinary residence with domicile (see part 4). * * If you Have Always Lived in the UK ordinarily resident Then You are here. When you come to the UK you do not Have to intendant to Remain in the UK Permanently or indefinitely in order to be ordinarily resident here. It is enough That your residence has all the Following attributes. * * Your Presence here have a Settled purpose. This might be for only a limited Period, But you have enough continuity to be Properly Described as Settled. Business, employment and family can all to Provide purpose Settled, But this list is not exhaustive. * * Your Presence in the UK forms part of the Regular and usual mode of your life for the Time Being. This can include temporary Absences from the UK. For example if you come to live in the UK for three years or more then you will Have Established to regulate and habitual mode of life here from the start. * * You have to eat the UK voluntarily.The Fact That you chose to come to the UK at the request of your employer Rather than seek another job does not make your Presence here involuntary. * * The pattern of your Presence, Both in the UK and overseas, is an Important When You Are Deciding factor if you are ordinarily resident in the UK. You Also will need to take Into account your Reasons for Being in, coming to, or leaving the UK and your lifestyle and habits. Parts 7 and 8 will help you With This, As They Explain the Considerations For Those coming to and leaving the UK. * http://www.hmrc.gov.uk/cnr/hmrc6.pdf * 4.2 What does domicile mean? * * Domicile is generally a matter of law, not of tax law. There are Many Things Which Affect your domicile. Some of the main points That You Should Consider if you are not to be domiciled Claiming in the UK are Shown below: * * You can not be without a domicile. * * You can only have one domicile at a time. * * You are domiciled in the country Normally Where You Have your permanent home. * * Your domicile will continue Existing Until You acquire a new one. * * Domicile is distinct from Nationality and residence, although Both Can Have an Impact on your domicile. * * The Fact That You register and vote as an overseas elector is not taken Into account Normally Deciding when to whether or not to you are domiciled in the UK. * ** * Any references we make to Being domiciled in the UK are references to Being domiciled in Any part of the UK. * http://www.hmrc.gov.uk/cnr/hmrc6.pdf * Domiciled here is a technical term With A Meaning. Very roughly (And This is a considerable simplification) an Individual is domiciled in the UK if I was born in the UK or if the UK is permanent historical home, and is not a UK domicile if I was born outside of the UK and does not intendant To Remain permanently. * http://en.wikipedia.org/wiki/Taxation_in_the_United_Kingdom * In law, domicile is the status or permanent attribution of Being to resident <http://en.wikipedia.org/wiki/Resident> In a special ** jurisdiction <http://en.wikipedia.org/wiki/Jurisdiction_%28area%29> . ** A person can domiciled in a jurisdiction Remain Even After They Have left it, if They Have Sufficient links Maintained With That jurisdiction or Have Not Displayed an intention to leave Permanently (ie, If That person HAS MOVED to a different state, But not yet have an intention Formed To Remain there indefinitely). A place of domicile Corporations is equivalent to STI place of incorporation. * * Http://en.wikipedia.org/wiki/Domicile_ 28law% 29% *** * * * 3) sharee'ah of Scotland * * * * III.3. ** The personal status and relationship issues in the state civil (name, domicile, capacity) * * The address of a person at the time of birth (home of origin) is the same as that of his father, provided that it is a child marriage. [] * * For over 16 years assuming they are still the home of origin, unless you opt for a different address. To choose a different address is must actually reside in the JURISDICTION concerned with intention to remain there indefinitely or permanently. In the time missing any of these requirements are reapplied old home rule. [] * * The cuestin the domicile of a person in a particular country is usually regulated by the Scottish sharee'ah except disposicin contrary, for example of an international instrument to which the United Kingdom is a party. [..] * http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_es.htm # II I.3. * * * Conclusions * According to the above, the Operating Principles as required LACRALO requirement to be representative of LACRALO to ALAC, have their place of principal residence in different passes of the region. The rules defining residence quse * means * and which we use (ascomo the rest of the sharee'ah acompaada) use A similar approach: distinguish between domicile and residence as two separate and distinct concepts between s. So my understanding is that Mr. Humberto Carrasco (l himself as stated in an email to the list of discussion LACRALO) has its * Home * in Chile, but he is now residing all, as it has stated its intention to return to Chile at the end her PhD, has a current intention that Chile is the real home, fixed, permanent and principal. Is the place where, every time estausente, it intends to return; while its * CV *, reside in that, being the seat in a particular place, the bond between the person and the dwelling place, regular or accidentally, with a certain character of permanence, ie more than just a temporary stay (to complete their studies PhD) is in Scotland. That is, following the criteria established by the laws applicable to our case, there are two concepts that should not be confused: residence and domicile. In the situation of Mr. Humberto Carrasco have two countries: Chile and Scotland. The criterion for assigning one of these passes a * Home *, is a legal standard and is the one discussed above: the home of Mr. Carrasco is Chile. The criterion for assigned to one of these passes a * home *, is a standard fact: Mr. Carrasco is living, living, has a home with a character of stay (want to finish her PhD) in the City of Edinburgh, Scotland (aslo said in his e electrnicos: desconociencontrarse never living in the city of Edinburgh and be pursuing doctoral studies at the University of same name). * * Therefore, pursuant to the provisions of the Rules of Procedure LACRALO and observing the Item 8 of the Operating Principles LACRALO requiring representatives to ALAC debern LACRALO have their principal residence in different passes of the region and taking into account the analysis performed to determine understood qudebe residence, all of uniform concepts considered two separate, residence and domicile. The Presidency considers that the Mr. Humberto Carrasco NOT meet the residency requirements required to be accepted as a candidate in the election process vlido that is open for the position of representative of LACRALO to ALAC. Regards Arce JosFrancisco President of LACRALO - Ab. Arce, Jose Francisco + 54 9 351 6788920 _______________________________________________ [[--Original text (es) http://mm.icann.org/transbot_archive/48d7893047.html --]]
Vanda: with all my respect, as always. Chilean Law is the proper law to apply to this case after to consider the LACRALO OP, for two reasons 1) because the candidate is citizen of this country 2) because is his Law, and we are giving a defense right with a law that is known by him , and don`t forget that the candidate is Lawyer and he has an obligation to know his own national law. For me the analysis made by the evaluation group is correct. To know legal aspects is very important when we are trying to clarify this situations, for that is very important get a crew of lawyers in the region too. Carlos Dionisio Aguirre NCA GNSO Council - ICANN former ALAC member by LACRALO Abogado - Especialista en Derecho de los Negocios Sarmiento 71 - 4to. 18 Cordoba - Argentina - *54-351-424-2123 / 423-5423 http://ar.ageiadensi.org
Date: Wed, 15 Aug 2012 21:40:53 +0000 From: vanda@uol.com.br To: lac-discuss-en@atlarge-lists.icann.org CC: lac-discuss-en@atlarge-lists.icann.org Subject: [lac-discuss-en] RES: Re: Final Consideration - Member of ALAC Election (Part 2)
[[--Translated text (es -> en)--]]
Subject: RES: Re: Final Consideration - Member of ALAC Election (Part 2) From: vanda@uol.com.br
Well, I believe can not be driven by LACRALO Chilean law or other national Laws! If the person has citizenship and is temporarily leaving in another country I see no reason to not allow the person to Participate. Even regarding regional balance in ICANN, citizenship is the MOST Combined With The critical issue to get another That demand " citizenship "Must the person in another country comprove leaving for more than 5 years! So people, lets be reasonable. If we will depend on Each country law, to Any decision, we will end With Each one voting based on ITS own laws. It from my view is crazy. Vanda
----- Mensagem Original ----- From: lac-discuss-es-bounces@atlarge-lists.icann.org [Mailto: lac-discuss-es-bounces@atlarge-lists.icann.org] Em nome JostbNL> Francisco Arce Posted in: Quarta-Feira, 15 August 2012 18:07 To: LACRALO Espaol, Silvia Vivanco, At-Large Staff Assunto: [lac-discuss-en] Fwd: Final Consideration - Elections for Member ALAC (Part 2)
---------- Forwarded message ---------- From: Maple JosFrancisco <josefranciscoarce@gmail.com> Date: August 15, 2012 17:05 Subject: Final Consideration - Member of ALAC Election (Part 2) To: LACRALO Espaol <lac-discuss-es@atlarge-lists.icann.org>
It confuses two concepts: principal residence and domicile, the legislaciny Chilean jurisprudence have clarified and demarcated time.
The * Art 59 of the Civil code defines * Chile * address * (not the residence) and defines residence as one of the components the home. The other elements of the home is the minimum of remain there (in residence).
* The home is the residence, accompanied, real or presumably, the minimum to stay in it. Divdese in politician and civil. *
* *
* The case of the Chilean Supreme Court * (C Supreme December 24 1962, R, t 59, section 1, p 478) has discussed this topic. View Pgina 231: http://books.google.com.py/books?id=R40zBEfltIoC&pg=PA231&lpg=PA231&dq=juris prudence + Chile + home + and + & source = bl home & ots = ga4bUbvF2g & sig = O_YRLG yCBviqCmADShvER6gsvHQ & hl = en & sa = X & ei = CHwmUN_2KIja9ATh8IGQAQ & ved = 0CEUQ6AEwAQ # v = Onepage & q = law%% 20chilena% 20and% 20residencia 20domicilio & f = true) stating:
* *
* 1. Domicile, residence, habitacin, purple. *
* A) You can not confuse the elements of domicile and residence, the first, which according to the civil code is the actual acompaada residence or presumptively the minimum to stay in it, is a valoracin jurdica defined by law Seala elements.In contrast, residence a mere matter of de facto relationship in the absence of definition legal, must be understood as natural and obvious meaning of the word, as acciny reside effect, ie, the fact of being in a seat particular location. *
* In C Conception, April 28, 1964, R, t 61, sec 4, pg. 289 has pronounced setting: *
* B) Civil Law, is the seat jurdico address of a person, and habitacin residence and are in fact a link between the person and the where she lives, ordinary or accidentally. *
* *
* 2) United Kingdom tax sharee'ah *
The sharee'ah which is responsible for regulating the tax issue in the United Kingdom (Of which Scotland is a part) is also expressed in clear and distinguishing between home and residence.
On the residence provides:
UK residence * 2.2 *
* There are Many Different Factors Which will determine Whether you are resident in the UK.With one exception (Explained in the next paragraph), it is not simply a question of the number of days you are Physically present in During's the UK tax year, although this is an Important consideration. *
* The only occasion when to the number of days That You are Physically present in the UK will determine your residence status is when to you are here for 183 days or more During's tax year. If you are here for 183 days or more in a tax year, you are resident in the UK. There are no exceptions to this. *
* You can Also be resident in the UK if you are present here for FEWER than 183 days in a tax year. This will depend on how long and how Often you are here, the purpose and pattern of your Presence and your connections to the UK. These might include the location of your family, your property, your your work life and social connections. *
* Http://www.hmrc.gov.uk/cnr/hmrc6.pdf *
* 3.2 What does ordinary residence mean? *
* Ordinary residence is Different from residence. The ordinary word Indicates That your residence in the UK is typical for you and not casual. It is Important not to confuse ordinary residence with domicile (see part 4). *
* If you Have Always Lived in the UK ordinarily resident Then You are here. When you come to the UK you do not Have to intendant to Remain in the UK Permanently or indefinitely in order to be ordinarily resident here. It is enough That your residence has all the Following attributes. *
* Your Presence here have a Settled purpose. This might be for only a limited Period, But you have enough continuity to be Properly Described as Settled. Business, employment and family can all to Provide purpose Settled, But this list is not exhaustive. *
* Your Presence in the UK forms part of the Regular and usual mode of your life for the Time Being. This can include temporary Absences from the UK. For example if you come to live in the UK for three years or more then you will Have Established to regulate and habitual mode of life here from the start. *
* You have to eat the UK voluntarily.The Fact That you chose to come to the UK at the request of your employer Rather than seek another job does not make your Presence here involuntary. *
* The pattern of your Presence, Both in the UK and overseas, is an Important When You Are Deciding factor if you are ordinarily resident in the UK. You Also will need to take Into account your Reasons for Being in, coming to, or leaving the UK and your lifestyle and habits. Parts 7 and 8 will help you With This, As They Explain the Considerations For Those coming to and leaving the UK. *
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
* 4.2 What does domicile mean? *
* Domicile is generally a matter of law, not of tax law. There are Many Things Which Affect your domicile. Some of the main points That You Should Consider if you are not to be domiciled Claiming in the UK are Shown below: *
* You can not be without a domicile. *
* You can only have one domicile at a time. *
* You are domiciled in the country Normally Where You Have your permanent home. *
* Your domicile will continue Existing Until You acquire a new one. *
* Domicile is distinct from Nationality and residence, although Both Can Have an Impact on your domicile. *
* The Fact That You register and vote as an overseas elector is not taken Into account Normally Deciding when to whether or not to you are domiciled in the UK. *
**
* Any references we make to Being domiciled in the UK are references to Being domiciled in Any part of the UK. *
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
* Domiciled here is a technical term With A Meaning. Very roughly (And This is a considerable simplification) an Individual is domiciled in the UK if I was born in the UK or if the UK is permanent historical home, and is not a UK domicile if I was born outside of the UK and does not intendant To Remain permanently. *
http://en.wikipedia.org/wiki/Taxation_in_the_United_Kingdom
* In law, domicile is the status or permanent attribution of Being to resident <http://en.wikipedia.org/wiki/Resident> In a special ** jurisdiction <http://en.wikipedia.org/wiki/Jurisdiction_%28area%29> . ** A person can domiciled in a jurisdiction Remain Even After They Have left it, if They Have Sufficient links Maintained With That jurisdiction or Have Not Displayed an intention to leave Permanently (ie, If That person HAS MOVED to a different state, But not yet have an intention Formed To Remain there indefinitely). A place of domicile Corporations is equivalent to STI place of incorporation. *
* Http://en.wikipedia.org/wiki/Domicile_ 28law% 29% ***
* *
* 3) sharee'ah of Scotland *
* *
* III.3. ** The personal status and relationship issues in the state civil (name, domicile, capacity) *
* The address of a person at the time of birth (home of origin) is the same as that of his father, provided that it is a child marriage. [] *
* For over 16 years assuming they are still the home of origin, unless you opt for a different address. To choose a different address is must actually reside in the JURISDICTION concerned with intention to remain there indefinitely or permanently. In the time missing any of these requirements are reapplied old home rule. [] *
* The cuestin the domicile of a person in a particular country is usually regulated by the Scottish sharee'ah except disposicin contrary, for example of an international instrument to which the United Kingdom is a party. [..] *
http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_es.htm # II I.3.
* *
* Conclusions *
According to the above, the Operating Principles as required LACRALO requirement to be representative of LACRALO to ALAC, have their place of principal residence in different passes of the region.
The rules defining residence quse * means * and which we use (ascomo the rest of the sharee'ah acompaada) use A similar approach: distinguish between domicile and residence as two separate and distinct concepts between s.
So my understanding is that Mr. Humberto Carrasco (l himself as stated in an email to the list of discussion LACRALO) has its * Home * in Chile, but he is now residing all, as it has stated its intention to return to Chile at the end her PhD, has a current intention that Chile is the real home, fixed, permanent and principal. Is the place where, every time estausente, it intends to return; while its * CV *, reside in that, being the seat in a particular place, the bond between the person and the dwelling place, regular or accidentally, with a certain character of permanence, ie more than just a temporary stay (to complete their studies PhD) is in Scotland.
That is, following the criteria established by the laws applicable to our case, there are two concepts that should not be confused: residence and domicile. In the situation of Mr. Humberto Carrasco have two countries: Chile and Scotland. The criterion for assigning one of these passes a * Home *, is a legal standard and is the one discussed above: the home of Mr. Carrasco is Chile. The criterion for assigned to one of these passes a * home *, is a standard fact: Mr. Carrasco is living, living, has a home with a character of stay (want to finish her PhD) in the City of Edinburgh, Scotland (aslo said in his e electrnicos: desconociencontrarse never living in the city of Edinburgh and be pursuing doctoral studies at the University of same name).
* *
Therefore, pursuant to the provisions of the Rules of Procedure LACRALO and observing the Item 8 of the Operating Principles LACRALO requiring representatives to ALAC debern LACRALO have their principal residence in different passes of the region and taking into account the analysis performed to determine understood qudebe residence, all of uniform concepts considered two separate, residence and domicile. The Presidency considers that the Mr. Humberto Carrasco NOT meet the residency requirements required to be accepted as a candidate in the election process vlido that is open for the position of representative of LACRALO to ALAC.
Regards
Arce JosFrancisco
President of LACRALO
- Ab. Arce, Jose Francisco + 54 9 351 6788920 _______________________________________________
[[--Original text (es) http://mm.icann.org/transbot_archive/48d7893047.html --]]
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Hi Vanda: I had another look at Jose's text after I read your response. Because like you, I believe that using national laws to determine LACRALO's business would be very problematic. This is why we have and need the RoP as guide. This aside, I now believe Jose's declaration entirely rational. It is also defensible. What distracts is that in his zeal to be thorough, Jose went into overdrive and 'over think', quoting this national law and that. Principles are the driving factors here. The declaration is supportable if you consider the practical understanding of being 'representative' of end users in a certain physical space and how that connects to where you live day-to-day. If one cannot interact readily with constituents in all kinds of ways day-to-day, you can hardly be said to be 'representing' them. Here I am making specific reference to the lectures on the meaning of democracy and representation of end users on this list, something I know is hardly understood, even by the lecturers. It is a similar situation with language that some of our Caribbean colleagues in Barbados has maintained for years. I confess I was uncomfortable with this view but I have now come to agree it is entirely practical. The representative's tenure is 2 years from October 2012; ending latest December 2014. Humberto is admitted and pursuing a full time face-to-face doctoral degree that will take him beyond December 2014 to acquire. Jose has pointed out Humberto is required by his university rules to be resident in Scotland for the duration of his study. As evidence by his acceptance for study, Humberto has agreed to this restriction. Jose has interpreted 'resident' in context to mean 'live day-to-day'. So if you follow Jose's reasoning, Humberto now lives day-to-day in Scotland. And for the period in which he would serve if he's elected, he would be living day-to-day in Scotland. Humberto has not disavowed the meaning of or intent of his university requirement for him to be 'resident' in Scotland for duration. Nor has he denied living now day-to-day in Scotland. What Humberto has done is to refute Jose's interpretation of the ordinary meaning of the word 'resident' and what it means to be 'representative' of end users in a defined geographic space. Reasonable people can disagree. Which is why LACRALO has a mechanism to challenge these disagreements. Warmest regards, - Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Wed, Aug 15, 2012 at 4:40 PM, <vanda@uol.com.br> wrote:
[[--Translated text (es -> en)--]]
Subject: RES: Re: Final Consideration - Member of ALAC Election (Part 2) From: vanda@uol.com.br
Well, I believe can not be driven by LACRALO Chilean law or other national Laws! If the person has citizenship and is temporarily leaving in another country I see no reason to not allow the person to Participate. Even regarding regional balance in ICANN, citizenship is the MOST Combined With The critical issue to get another That demand " citizenship "Must the person in another country comprove leaving for more than 5 years! So people, lets be reasonable. If we will depend on Each country law, to Any decision, we will end With Each one voting based on ITS own laws. It from my view is crazy. Vanda
participants (3)
-
carlos dionisio aguirre -
Carlton Samuels -
vanda＠uol.com.br