[CCWG-ACCT] FW: Regarding GAC participation

Thu Oct 1 14:05:30 UTC 2015

Dear Mike
We have not agreed that it is current subject.
Who has so decided?
Regrards
Kavouss

2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier at intel.com>:

> Kavouss,
>
>                “unincorporated association” is the current proposal, so
> definitely not abandoned.
>
> Mike
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Rosemary
> E. Fei
> *Sent:* Thursday, October 1, 2015 4:44 AM
> *To:* 'Kavouss Arasteh'
>
> *Cc:* Accountability Cross Community (
> accountability-cross-community at icann.org)
> *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
>
>
>
> Dear Kavouss:
>
>
>
> Since it is a sensitive point, please let me clarify that I was merely
> letting the list know where it can find the answer to a narrow question
> about unincorporated associations that has been asked and answered before,
> and which came up in an email thread today.
>
>
>
> I am certainly not proposing that the CCWG consider (or reconsider)
> anything, if that’s what you mean by “coming back” -- such a proposal would
> exceed my remit from the CCWG as I understand it.  I would not insert
> myself into the CCWG’s discussions in that way.
>
>
>
> Rosemary
>
>
>
> Rosemary E. Fei
> Adler & Colvin
> 235 Montgomery Street, Suite 1220
> San Francisco, CA 94104
> 415/421-7555 (phone)
> 415/421-0712 (fax)
> rfei at adlercolvin.com
> www.adlercolvin.com
>
>
>
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> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
> <kavouss.arasteh at gmail.com>]
> *Sent:* Thursday, October 01, 2015 1:35 AM
> *To:* Rosemary E. Fei
> *Cc:* Accountability Cross Community (
> accountability-cross-community at icann.org)
> *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
>
>
>
> Rosemary
>
> Are you coming back to "*a California unincorporated association "*
> again???
>
> We have abadonned that
>
> :
>
> Regards
>
> Kavouss (
>
>
>
> 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei at adlercolvin.com>:
>
> Dear CCWG:
>
>
>
> We responded to the question in red in the email below, which someone also
> asked in the August 25 webinar.  We added the response when we were asked
> to review and edit the webinar Q&A.  I’m not sure when this got posted, but
> I think it was on the “last modified” date of September 21.
>
>
>
> https://community.icann.org/pages/viewpage.action?pageId=54695403
>
>
>
> See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
>
>
>
> *CCWG Legal Counsel's Response*: * If the sole member is formed as a
> California unincorporated association (since it would need to be a legal
> person in order to be a statutory member of ICANN), participants in the
> Sole Member unincorporated association would not liable for the debts,
> obligations, or liabilities of the association solely by reason of being
> participants, as stated in California Corporations Code Section 18605.*
>
> *Corporations Code Section 18630 simply points out the legal principle of
> common-law alter-ego liability, applicable not only to unincorporated
> associations but also to corporations and other limited-liability entities
> such as limited liability companies.  For example, under this principle a
> corporate shareholder could be held liable for the debts of a corporation
> that is operated so closely by or in connection with the shareholder that
> it has ceased to have a separate existence for practical purposes (i.e.,
> the corporation has been operated as the shareholder’s mere “alter ego”).
> Typically, however, a finding of alter-ego liability requires a number of
> egregious facts, including a commingling of funds between the shareholder
> and the corporation and a failure to observe corporate formalities.  Courts
> may also require a demonstration of outright fraud.  If the CMSM is
> administered according to the governance provisions to be included in the
> ICANN Bylaws, we do not believe there would be a basis for a court to
> assert alter-ego liability against its participants.*
>
>
>
> While this does not respond to all of the questions posed in the email
> below, I hope that at least this one answer is helpful.
>
>
>
> Rosemary
>
>
>
> Rosemary E. Fei
> Adler & Colvin
> 235 Montgomery Street, Suite 1220
> San Francisco, CA 94104
> 415/421-7555 (phone)
> 415/421-0712 (fax)
> rfei at adlercolvin.com
> www.adlercolvin.com
>
>
>
> _____________________________
>
> Adler & Colvin is a San Francisco Green Business certified by the City and
> County of San Francisco. Please consider the environment before you print
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>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Perez
> Galindo, Rafael
> *Sent:* Wednesday, September 30, 2015 2:26 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* [CCWG-ACCT] Regarding GAC participation
>
>
>
> Good morning/afternoon/night to All
>
>
>
> In order to make an informed decision on the role the GAC could take on in
> the different models under discussion, it is still unclear to me what the
> legal implications of participation in a voting mechanism are for
> governments, even more in the absence of a precedent or parallel that we
> could draw on.
>
>
>
> Hence, the ability for governments to participate in wider community
> voting processes under a foreign jurisdiction is a point I would like to
> raise with the CCWG's legal advisors, along with the issue of governments
> liability as participants e.g. in the sole member of a non-for-profit
> corporation (which stems from the fact that governments would be subject to
> CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th
> september email) and I believe no answer has been provided to date:  "*[...]
> I still did not receive an answer with respect to my question regarding the
> applicability of CA Corporations Code Section 18630 which provides as
> follows:   "Notwithstanding any other provision of this chapter, a member
> or person in control of a nonprofit association may be subject to liability
> for a debt, obligation, or liability of the association under common law
> principles governing alter ego liability of shareholders of a corporation,
> taking into account the differences between a nonprofit association and a
> corporation.".*
>
>
>
> In conclusion, I kindly ask the Co-Chairs to forward these questions to
> the CCWG legal advisors about (1) ability, (2) legal implications and (3)
> liabilities of governments if they took part as voting members in the
> community mechanism to be deployed under CA jurisdiction. An answer should
> be provided for the three models under discussion (SMM, Single designator
> and MEM).
>
>
>
> Looking forward to receiving the legal advice, thank you and best regards
>
>
>
> Rafael
>
> GAC_SPAIN
>
>
>
>
>
>
>
>
>
>
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