[CCWG-ACCT] FW: Regarding GAC participation

Thu Oct 1 20:42:50 UTC 2015

Hello Holly,

Thanks for your response, as it confirms my understanding as well. So its
still requires legal personhood but as unincorporated association. I guess
Malcolm's comments may have been what further got me confused.

Regards

On Thu, Oct 1, 2015 at 8:59 PM, Gregory, Holly <holly.gregory at sidley.com>
wrote:

> Just to clarify what appears to be a misunderstanding and to echo
> Rosemary’s earlier email:  The Sole Member would need legal personhood as
> we have described and as the Second Proposal reflects.  The most
> straightforward way to have legal personhood is as an unincorporated
> association. This is a fairly simple matter that would be handled in
> ICANN’s bylaws.  We discussed this in Paris at the time the Sole Member
> idea was described.  And the Second Proposal accurately describes.
>
>
>
>
> *HOLLY J. GREGORY *Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
>
> *Sidley Austin LLP*
> 787 Seventh Avenue
> New York, NY 10019
> +1 212 839 5853
> holly.gregory at sidley.com
> www.sidley.com
>
> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png]
> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Kavouss
> Arasteh
> *Sent:* Thursday, October 01, 2015 3:53 PM
> *To:* Greg Shatan
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
>
>
>
> Dear James ,
>
> Thank you very much for the message.
>
> NO THAT IS NOT THE CASE.
>
> iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated
> Association in BA as the Lawyers mentioned we could get ride of that
> complex issuer.
>
> Pls read the outcome of our meeting.
>
> Regards
>
> Kavouss
>
>
>
> 2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>
> 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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