[CCWG-ACCT] FW: Regarding GAC participation

[Greg Shatan]

This is not limited to California.  There are a number of US states where
an unincorporated association is a legal person.  There are also other
types of legal persons that can be formed without incorporation, such as
partnerships and trusts.  So the etymology is not dispositive.

Common law is also a bit of a misnomer as used here.  Although the US is a
"common law" country, we have miles and miles of statutes, codes and
regulations (federal, state and local) that make up our laws.  There are
underlying principles and defaults that come from "common law," but finding
these in their natural state in the law is about as likely as finding an
old growth forest in Manhattan.  As I understand it, the more relevant
distinction between common law and civil law, in action, is that under
common law, judicial decisions create binding precedent that dictate how
the statute must be interpreted (a gross oversimplification), while civil
law maintains the primacy of the statutory text (plus any regulatory
overlay, etc.)

It may be the case in other common law jurisdictions that unincorporated
associations have been granted legal personhood, though I'm not sure that's
relevant.  What's more relevant is that under principles of comity and
other international law principles, the personhood of an entity in its
state of domicile will generally be respected in other jurisdictions.  US
courts don't turn away GmbH and SpA entities, for instance, even though
they aren't the same as US entity types.  Similarly, the UA form should not
be disregarded in a foreign jurisdiction that does not itself view UAs as
legal persons.

Greg

On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel at channelisles.net>
wrote:

> This has echoes of how I entered the discussion a month or two back . . .
>
> I have been informed, and now have the understanding, that **IN
> CALIFORNIA**, an unincorporated association is a legal person under statute.
>
> As mentioned much earlier, this runs rather counter to the common-law
> concept of UAs; they have no separate identity to that of their members.
>
> The terminology is the clue here incorporation being the act of the birth
> (making corporeal) of a (legal) person. So something that is unincorporated
> cannot have a separate identity.
>
> This means UAs are regarding as highly dangerous things in British/common
> law jurisdictions, as the members and officers may be subject to unlimited
> personal liability for the acts of the association.
>
> Nonetheless I am satisfied that the above is the advice received to the
> CCWG from lawyers admitted in the jurisdiction and I am sure they will be
> happy to rehearse it on the list.
>
>
> Hello Malcolm,
>>
>> Are you certain there is no lega person-hood required because that
>> section referenced by James seem to imply that. I quote a specific section
>> below:
>>
>> "... the Community Mechanism as Sole Member Model would be a *legal
>> person* created through the ICANN Bylaws as an unincorporated
>> association...."
>>
>> Regards
>> Sent from my Asus Zenfone2
>> Kindly excuse brevity and typos.
>>
>
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