[[--Translated text (es -> en)--]] Subject: Final Consideration - Member of ALAC Election (Part 1) From: josefranciscoarce@gmail.com Dear, I've come to this informal tell you the reason for the delay news on elections for members of ALAC. First I want on behalf of the president and secretary (Sylvia) to thank all the members of the region, staff personnel and Olivier, president of ALAC, for the help they have provided in this topic. If I want to emphasize, before exposing them some ideas to arrive, which during which time staff requested ICANN staff Audio of the meeting in San Juan in order to be able to hear Rule 8 discussions and technical issues these audios not function. The idea was to see what was the spirit of that rule. Some of you who were at that time have put in list and it gradecemos. And they consulted the legal staff of ICANN hacerca of a present situation. As this email will be long I'm going to split in two, so that translations are better. * * * Background * Having called for elections to elect the representative of LACRALO to ALAC for the period 2012-2014, effective July 15, 2012, is Nominations Nominations accepted until July 29, 2012. Then receptaron acceptances are those nominations until July 31 2012, being the nominees and accepting of their applications: Fatima Cambronero, Humberto Carrasco, Dev Anand Teelucksingh. Subsequently set on August 9 as the date for teleconference for candidates to make their presentations and give their proposals. On August 8, after receiving emails and communications of different members of our region concerned about the Humberto Carrasco situation, to be studying and living in Edinburgh (Scotland) communicated the situation in the discussion list LACRALO opening discussion of the community with different types of demonstrations. * * * Operating Principles LACRALO and MoU between ICANN and LACRALO * As expressed above, the requirements imposed on our Operating Principles and to be met by representatives of LACRALO to ALAC are expressly set out in Point * 8 * of these Principles, which provide in relevant part: "[...] The selected representatives must be members of different ALS, * must have their principal place of residence in different countries region *, and their nationalities must be different [...] ". < https://community.icann.org/download/attachments/2264378/Principios%2520Oper...> https://community.icann.org/download/attachments/2264378/Principios%2520Oper... In addition, the Memorandum of Understanding (MoU) signed by ICANN and LACRALO in Point 5.4.1. has the same effect that the Principles Operating: "[...] The elected representatives must be members of different ALS, * will residence in one of the countries of the region and their nationalities * have to be different. [...] ". < https://community.icann.org/download/attachments/2264378/MOU%2520Between%252...> https://community.icann.org/download/attachments/2264378/MOU%2520Between%252... The question to be determined is whether Humberto Carrasco has its residence in one of the countries in our region, so it can be accepted as a valid candidate to represent LACRALO to ALAC within the election process we have underway. We must therefore determine which means * "residence" *. * * * Definition of Residence * To determine what is meant by "residence" we must turn first place our MoU and our Operating Principles that are LACRALO which as a rule, first apply for all situations occurring within our RALO. Within two regulatory bodies, does not define what is meant or meant by "residence". However, one member of LACRALO, who was one of the editors of both papers, Carlton Samuels, expressed in the list of LACRALO discussion, stating that at the time of writing there many discussions to determine whether to use the word "Address", rather than the word finally used, which was "Residence". This shows what was the spirit of the rule to choose a word that has more to do with fact (factum) and not a word involving a legal definition, as home. However, LACRALO Operating Principles can not be analyzed in isolation of the ICANN Bylaws, as under the MoU held, LACRALO agree to abide by these regulations. Also the last part of Item 8 of the Operating Principles reinforces this idea: "[...] The representatives shall be responsible for the duties forth in the ICANN Bylaws * ". * https://community.icann.org/download/attachments/2264378/Principios%2520Oper... Therefore, we must turn to the ICANN Bylaws to analyze whether define what is meant by * "residence". * The * ICANN Bylaws * in * Article 6 * referred to the Board Directors, the * Section 2, subsection 2 * mentioned in arguments earlier, refers to the requirement * diversity * ("Calculating Diversity "to be met * Directors * Board in the process of * selection made by the Nominating Committee * (NomCom), therefore, not be analyzed in isolation from its context. This situation is what corresponds to the history of Adam Peake. Not applicable to our case analysis because the choice of representative should be LACRALO by the same LACRALO and not by the Nominating Committee. http://www.icann.org/en/about/governance/bylaws For these purposes is that the article concludes that the * "Home" * is determined by where the candidate has a permanent residence and place of abode. That is, even though this article does not provide for the situation to which we are trying to solve, does not define what is meant by "Residence", but it only defines the concept "home". Means that concepts domicile and residence are different concepts, and that the CV is one of the components characterizing the address. * * * ICANN Bylaws and the laws of California * Having analyzed the ICANN Bylaws and found no response in themselves, about what we meant by "residence", the same laws are those who tell us that we must resort to the laws of the State of California. * ICANN * is a non-profit public benefit corporation created in 1998 under the laws of the State of California therefore is subject to both California state law as to the U.S. federal law. One of the reasons why ICANN was formed as a corporation profit public benefit is that the State of California offers a rigorous framework for legal accountability for organizations this type. The responsibilities that have been implemented through ICANN's Bylaws and corporate structure should give stakeholders confident that ICANN operates with the highest standards of accountability. http://archive.icann.org/en/accountability/frameworks-principles/legal-corpo... * * * Laws of California * * Guidelines for determining the residency status of 2010 * of the * Franchise Tax Board State of California *, explicitly defined who should be included in the quality of residents and the non- residents: * "California defines a resident as anyone: (1) in the state for other than a temporary or transitory purpose; "* What is meant by temporary or transitory purpose?This is explained below: "* California boast more than a resident spends 9 months a year in the state, however, spend spending less time does not create a presumption of non-residency. Also, one may be a resident of California Even Though His domicile is elsewhere ". * This article must be understood in context. Taking into account the definition that these guidelines do also address: * "The term" domicile "has a special legal definition That is not the Same as residence. Many Consider While domicile and residence states to be the Saami, California makes a distinction and views as two Separate Them concepts, Even Though They may Often overlap. For instance, you may be domiciled in California but not a California resident or be you may be domiciled in another state but be a California resident for income tax purposes. * * Domicile is defined for tax ** Purposes as the place Where You voluntarily Establish yourself and family, not Merely for a special or limited purpose, But With A present intention of making it your true, fixed, permanent home and principal establishment.It is the place where, Whenever you are absent, you intendant to return ". * This definition is supplemented by making the doctrine: * "Residence" ** and "domicile" are distinct concepts for California tax purposes. "Domicile" denotes the one location with Which to have the person MOST Settled and permanent connections and Where the person intends to remain. [FN6] "Residence" denotes factual place of abode Any of Some permanency, That Is, "more than a mere temporary sojourn." * * "Regarding domicile, the Court of Appeal has with previously defined" domicile "as the "Which one location with a person for legal Purposes is Considered to Have The Most Settled and permanent connection, the place WHERE I intends To Remain and to Which, Whenever I is absent, I have the intention of Returning .... "* * Http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=6792 * <http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=6792> ** The California Election Code * 2010, * in * Article 2 * also specifies the criteria for determining residence and address: * "2021. (A) A person who leaves his or her home to go Into another state In This precinct or state for temporary Purposes Merely, With The intention of Returning, does not lose his or her domicile. * * (B) A person does not gain a domicile in precinct Into Any Which I or she eat for temporary Purposes Merely, without the intention of making That his or her home precinct. "* http://law.justia.com/codes/california/2010/elec/2020-2035.html * * * Other laws that distinguish between Domicile and Residence * Following the order indicating LACRALO Operating Principles, the MoU signed with ICANN, the ICANN Bylaws and the laws of California appears expressly and clearly the distinction between the two concepts of residence and domicile, and define the concept of residence is must meet to be a representative of LACRALO to ALAC. Also, if we had to resort to other legislation to avoid be any doubt, we find both in Chilean law, in the Scottish and the UK, all distinguish between residence and address, and define both concepts in the same manner and using the same criteria. Therefore, even if our laws did not provide this situation (do) and we should resort to external law Through its analysis, in all cases would reach the same result: domicile and residence are different and separate concepts. * * * 1) * Chilean Law To strengthen California law distinguishes between home and residence, we found the Chilean legislation and jurisprudence statements in the same direction, keeping in mind the Chilean legislation (Chilean Civil Code) that Mr. Humberto Carrasco supports them in their email discussion list LACRALO. Manifestations of Mr. Humberto Carrasco in the discussion list LACRALO: * "B. - The second, which is my interpretation, noting that I tending primary residence (or home), but has a residence secondary, or put another way, I am a resident not domiciled in Edinburgh ". * _______________________________________________ [[--Original text (es) http://mm.icann.org/transbot_archive/01bd8e1747.html --]]