[CCWG-ACCT] member organization and single membership structure
Greg Shatan
gregshatanipc at gmail.com
Thu Jul 9 17:50:17 UTC 2015
I don't think anyone has suggested any "wooly, inchoate structures," in the
event that SO/AC's may elect to create, become or empower a legal entity.
First, it has generally been discussed that each SO/AC would be free to
choose the place and type of entity should they elect the legal entity
route. Second, the structures discussed have included:
1. California Unincorporated Association
2. Nonprofit Corporation (which could be established in any US state,
including without limitation California, and also has equivalents in many
(if not most) non-US jurisdictions)
3. Limited Liability Company (ditto)
These all seem non-wooly and "choate" to me.
Greg
On Thu, Jul 9, 2015 at 12:21 PM, Nigel Roberts <nigel at channelisles.net>
wrote:
> Very interesting and helpful comments.
>
> Here's where I am at. I was, for about four years, a Board Member of a
> non-profit, ICANN-like organisation in the UK. (The Radio Society of Great
> Britain -- see www.rsgb.org).
>
> That was originally founded by some bloke named Marconi, and some of his
> chums in 1913, but it was incorporated as a company Limited by Guarantee in
> the 1920s, which it remains this day.
>
> The liability of each member (there are no shareholders) is limited to an
> amount that is set in the Articles. In the case of very old organisations
> like this, it's just one pound!.
>
> The Members control the board by election, and the Board, just like the
> ICANN Board, has a fiduciary duty.
>
> Now, I'm NOT suggesting that individual SOs establish themselves under
> English or Scottish law as this sort of incorporated non-profit (which is
> PARTICULARLY suited to a membership model), nor indeed as the more modern
> Community Interest Company (CIC).
>
> But what I'm saying is that my instincts, as shown by Edward's very scary
> but accurate scenario, are to avoid woolly, inchoate, structures and prefer
> well-defined (and, to be honest, inexpensive) formal structures such are
> provided for in the law of most European states.
>
> My two eurocents.
>
>
>
>
> On 09/07/15 16:15, Edward Morris wrote:
>
>> 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
>> <mailto: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>
>> <mailto: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>>
>> <mailto: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
>> >>
>> <mailto: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> <mailto: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>
>>
>> <mailto: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>
>> <mailto: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> <mailto:avri at acm.org
>> <mailto:avri at acm.org>>"
>> <avri at acm.org <mailto:avri at acm.org>
>> <mailto:avri at acm.org <mailto:avri at acm.org>>>,
>>
>> "accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>
>> <mailto: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>
>> <mailto: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>
>> <mailto:avri at acm.org <mailto:avri at acm.org>>>
>> Organization: Technicalities
>> Reply-To: "avri at acm.org
>> <mailto:avri at acm.org> <mailto:avri at acm.org
>> <mailto:avri at acm.org>>"
>> <avri at acm.org <mailto:avri at acm.org>
>> <mailto: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>
>> <mailto: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>
>> <mailto: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
>>
>>
>>
>>
>>
>>
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>> --
>>
>>
>> ------------------------------------------------------------------------
>>
>> /Seun Ojedeji,
>> Federal University Oye-Ekiti
>> web: http://www.fuoye.edu.ng
>> Mobile: +2348035233535 <tel:%2B2348035233535>
>> <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>>
>> <mailto: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 !
>>
>>
>>
>>
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