[CCWG-ACCT] member organization and single membership structure
Edward Morris
egmorris1 at toast.net
Thu Jul 9 15:15:53 UTC 2015
Hi Nigel,
I'm in the U.K. and have raised the issue in the past, but only to suggest
that because of this some SOAC's might want to consider the more complex
formation of a PBC as an option going forward.
You are correct about the status of UA's in the UK (Scotland as well as
England and Wales - different legal system, as you know). The same holds
true in Finland, the country where I received the bulk of my legal
education. Over time, though, in both countries the courts would eventually
recognise the liability protection afforded by California law as a matter
of comity. Long term, I don't see a problem. That said, I'm pretty sure
that were I to want to sue someone involved in a SOAC in the UK for actions
of the SOAC I'd be able to get through a Directions Hearing and force a
trial upon the other party. That's why indemnification is particularly
important if UA's are used going forward.
Might I also respectfully suggest that most of us are already part of UA's,
albeit of the non registered variety. I would suspect I could make the case
that the NCSG, NCUC and GNSO, all of which I'm active in, could currently
be construed as UA's under British law and elsewhere and thus I could
already be held liable for the actions of these organs. I don't see where
any of the proposed structures would make my individual situation worse
going forward.
Kind Regards,
Ed Morris
On Thu, Jul 9, 2015 at 3:20 PM, Nigel Roberts <nigel at channelisles.net>
wrote:
> One of the leading authorites on this matter, and the real dangers of UA
> structures is the Gillingham Bus Disaster case (RE GILLINGHAM BUS DISASTER
> FUND [1958] Ch 300)
>
>
> https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gillingham+Bus+Disaster+appeal+judgment&source=bl&ots=rGrH81jGKn&sig=jCRoZq2-tiGTN7MUuzoteOS0oPw&hl=en&sa=X&ei=r4KeVbjAHIT2UpHHi4AL&ved=0CCQQ6AEwAQ#v=onepage&q=Gillingham%20Bus%20Disaster%20appeal%20judgment&f=false
>
> Happy reading.
>
>
>
>
> On 09/07/15 15:17, Nigel Roberts wrote:
>
>> Unincorporated associations in English, and Scottish law explicitly have
>> unlimited liability. There is no registration involved, they simply
>> exist as a matter of law. So if you and I formed a bridge club at our
>> local pub, and invited members, that would automatically be a UA, would
>> NOT have legal personality, and the members, and more particularly, the
>> officers, would have UNlimited liabtliy
>>
>> The assets of the UA are held on trust, in the legal name of the
>> officers, for the purposes of the UA.
>>
>> I am assuming the difference here is that a California unincorporated
>> assocation is not an unregistered entity but is a creature of statute
>> (state law), giving limited liability following a registration process.
>>
>> Is that correct?
>>
>>
>> Nigel
>>
>> PS: I apologise for not having read every single email that was sent
>> before I joined this list last week; as my law professor (a High Court
>> judge said: "Nothing is obvious to everybody").
>>
>> On 09/07/15 15:07, Greg Shatan wrote:
>>
>>> Nigel,
>>>
>>> A California unincorporated association is a limited liability vehicle,
>>> as it is in certain other jurisdictions. If we were to go down the
>>> route of have SO/ACs be/create/empower (three different options) a legal
>>> entity, one would expect a choice to be made that would shield SO/ACs
>>> and their members from unlimited legal liability (and there are a
>>> variety of options to do so). While this should be implicit by now in
>>> this discussion, since it has been explicitly discussed in the past, I'm
>>> glad for the opportunity to make it explicit once again. Suggesting
>>> someone cross the street is not equivalent to telling them to walk into
>>> traffic.
>>>
>>> Greg
>>>
>>> On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel at channelisles.net
>>> <mailto:nigel at channelisles.net>> wrote:
>>>
>>> Greg, all
>>>
>>> I have a deadly serious question.
>>>
>>> Why would any Member of an SO voluntarily submit to the danger of
>>> unlimited monetary liability?
>>>
>>> So why is anyone even considering UA status for more than 10 seconds?
>>>
>>>
>>> Nigel
>>>
>>> See
>>>
>>>
>>> http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-or-unincorporated-association/
>>>
>>>
>>>
>>> On 09/07/15 14:35, Seun Ojedeji wrote:
>>>
>>> On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan
>>> <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
>>> <mailto:gregshatanipc at gmail.com
>>> <mailto:gregshatanipc at gmail.com>>> wrote:
>>>
>>> Seun,
>>>
>>> Can you point where this understanding and learning comes
>>> from? I
>>> don't think any of this is correct, unless you are
>>> referring to a
>>> "council" where each SO/AC is a statutory member of the
>>> corporation.
>>>
>>>
>>> Yes indeed thats what i was referring to
>>>
>>> This is not the case in the "single member model," where
>>> there is
>>> only one statutory member.
>>>
>>>
>>> Okay thanks for clarifying that for me. So if i get this
>>> correctly; does
>>> it mean one of the SO/AC will be a member and then every other
>>> SO and AC
>>> exercise their powers through that single member?. Specifically
>>> which of
>>> the SO/AC will be member in the single member model?
>>>
>>> However if one of the SO/AC won't have to become a member but
>>> the entire
>>> council becoming a UA to fulfill membership requirement, how
>>> will that
>>> address some SO/AC not wanting to enter into such legal
>>> formality? also
>>> how will accountability of the council be ensured as it could
>>> then mean
>>> creating a mini-ICANN board as the council members would have
>>> the voting
>>> rights, independence et all. Perhaps the council can be limited
>>> by its
>>> governing document, but how will removing council members for
>>> instance
>>> be in effect if the populating source(SO/AC) is not a UA.
>>>
>>> Perhaps its not as complicated as i am imagining it so it will
>>> be good
>>> to hear some clarifications.
>>>
>>> Regards
>>>
>>>
>>> Greg
>>>
>>> On Thursday, July 9, 2015, Seun Ojedeji
>>> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>
>>> <mailto:seun.ojedeji at gmail.com
>>> <mailto:seun.ojedeji at gmail.com>>> wrote:
>>>
>>> I understand the powers would be bestowed on the council
>>> individuals and not their source position;
>>>
>>> For instance one of the option is to populate the
>>> community
>>> council with leaders of SO/AC, which IMO would be the
>>> cheapest
>>> route in this model so they would be occupying a
>>> virtual seat
>>> and exercise those powers when required. It would also
>>> allow the
>>> various SO/AC internet accountability mechanisms
>>> apply to
>>> council including removal of members.
>>>
>>> However, I then learnt that the council cannot be
>>> formed by
>>> SO/AC leader positions but rather to the occupants of
>>> that
>>> position. This would mean having to rewrite the
>>> bylaw/document
>>> forming the council often since leaders of those
>>> positions are
>>> dynamic and could change at anytime. Will be good to
>>> know if
>>> that is no longer the case
>>>
>>> Regards
>>> Sent from Google nexus 4
>>> kindly excuse brevity and typos.
>>>
>>> On 7 Jul 2015 2:56 pm, "Roelof Meijer"
>>> <Roelof.Meijer at sidn.nl <mailto:Roelof.Meijer at sidn.nl>>
>>> wrote:
>>>
>>> Interesting, we’re back on the subject of a single
>>> member
>>> structure. It was written off before
>>>
>>> Cheers,
>>>
>>> Roelof
>>>
>>> From:
>>> <accountability-cross-community-bounces at icann.org
>>> <mailto:accountability-cross-community-bounces at icann.org>> on
>>> behalf of Roelof Meijer <roelof.meijer at sidn.nl
>>> <mailto:roelof.meijer at sidn.nl>>
>>> Date: woensdag 22 april 2015 15:56
>>> To: "avri at acm.org <mailto:avri at acm.org>"
>>> <avri at acm.org <mailto:avri at acm.org>>,
>>> "accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>"
>>> <accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>>
>>> Subject: Re: [CCWG-ACCT] member organization and
>>> single
>>> membership structure
>>>
>>> Hi Avri,
>>>
>>> The sole membership construction, is a possibility
>>> described
>>> in the legal document in several places: the
>>> comments by the
>>> legal experts on the PCCWG mechanism template (page
>>> 64) and
>>> the Community Council mechanism template (page
>>> 69). I
>>> sent several emails about it to the WP1 list,
>>> suggesting to
>>> look in the possibility as indeed it would not
>>> necessitate
>>> every SO and AC to become a legal entity. And, as
>>> you do,
>>> suggesting: "make the „Community Council” the sole
>>> member of
>>> ICANN (and thus a formal legal entity), consisting
>>> of either
>>> the SO and AC chairs or SO/AC elected
>>> representatives” (from
>>> an email of 14 April).
>>>
>>> And I would think it would enable the SO’s and AC’s
>>> themselves to continue appointing directors, as
>>> they do now.
>>> But that’s just guessing, based on the fact that
>>> the SO’s
>>> and AC’s themselves would not change status
>>>
>>> Best,
>>>
>>> Roelof
>>>
>>> From: Avri Doria <avri at acm.org
>>> <mailto:avri at acm.org>>
>>> Organization: Technicalities
>>> Reply-To: "avri at acm.org <mailto:avri at acm.org>"
>>> <avri at acm.org <mailto:avri at acm.org>>
>>> Date: woensdag 22 april 2015 15:09
>>> To: "accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>"
>>> <accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>>
>>> Subject: Re: [CCWG-ACCT] member organization and
>>> single
>>> membership structure
>>>
>>> Hi,
>>>
>>> On 22-Apr-15 08:26, Roelof Meijer wrote:
>>>
>>> 2)
>>> What I find quite frustrating is that I have
>>> raised the
>>> point of the possibility (or not) of a single
>>> membership
>>> structure – an option mentioned by Sidley and
>>> Adler &
>>> Colving in their legal advice – several times
>>> by now
>>> without getting any substantial reaction. I am
>>> not aware
>>> that any serious effort to investigate this has
>>> led to a
>>> formal write-off.
>>>
>>>
>>> In some way that might lessen the complexity of
>>> making most
>>> SOAC an individual legal entity.
>>>
>>> How would it work? Would we continue to appoint
>>> Directors
>>> just as we do now?
>>>
>>> Or would there need to be some sort of Members
>>> Council that
>>> took actions, working simliarly to the the
>>> executive board
>>> or community council idea?
>>>
>>> thanks
>>>
>>> avri
>>>
>>>
>>>
>>>
>>>
>>> ------------------------------------------------------------------------
>>> Avast logo <http://www.avast.com/>
>>>
>>> This email has been checked for viruses by Avast
>>> antivirus
>>> software.
>>> www.avast.com <http://www.avast.com> <http://www.avast.com/>
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <mailto:Accountability-Cross-Community at icann.org>
>>>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <mailto:Accountability-Cross-Community at icann.org>
>>>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>>
>>>
>>> --
>>>
>>> ------------------------------------------------------------------------
>>>
>>> /Seun Ojedeji,
>>> Federal University Oye-Ekiti
>>> web: http://www.fuoye.edu.ng
>>> Mobile: +2348035233535 <tel:%2B2348035233535>
>>> //alt
>>> email:<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
>>> <mailto:seun.ojedeji at fuoye.edu.ng>
>>> <mailto:seun.ojedeji at fuoye.edu.ng
>>> <mailto:seun.ojedeji at fuoye.edu.ng>>/
>>>
>>> The key to understanding is humility - my view !
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <mailto:Accountability-Cross-Community at icann.org>
>>>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <mailto:Accountability-Cross-Community at icann.org>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>>
>> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150709/f7a4b387/attachment.html>
More information about the Accountability-Cross-Community
mailing list