[Acct-Legal] Request for advice on Swiss law

[Edward Morris]

H everybody,

I'm opposed to sending this question to independent counsel unless someone
can explain to me why Switzerland is chosen as an alternate jurisdiction.

If there is no particular reason, then if we are to expend resources
exploring alternate jurisdictions I would request that resources also be
expended to explore the same question under the laws of  Delaware (a
traditional alternate US state for incorporation), Ireland (a favoured
European incorporation jurisdiction for private multinational corporations,
which ICANN is), Estonia (a favoured location for cyber companies whose
e-residence program may offer certain benefits for SOAC organisations and
ICANN itself) and Iceland (a country with highly developed corporate
transparency and shareholder participation laws).

I undestand the instinct to look at Switzerland as an alternate
jurisdiction. However, unless one is going to propose changing the nature
of ICANN (that of a private corporation) I see no reason to initially
assume that Swiss jurisdiction would be superior to that of any other
country.  I would prefer that we not go down that road at this time, but if
we are going to start looking at alternative jurisdictions I respectfully
request those jurisdictions previously named in this post also be examined
as I believe they may offer possibilities that are superior for our
purposes than Switzerland, a nation with highly developed corporate secrecy
laws. Of course, others may have additional jurisdictions they wish to
explore and I submit that once we start exploring any jurisdiction other
than the current one of California we are obliged to explore all those that
are suggested in good faith. There is no reason to give Switzerland
preference.

Respectfully,

Edward Morris



On Mon, May 11, 2015 at 10:49 PM, Mathieu Weill <mathieu.weill at afnic.fr>
wrote:

>  Dear Counsel and colleagues,
>
> Maybe to focus the question a bit and avoid too large a research in a
> first step, the key assumption we would like to test is whether Swiss law
> would enable the SOs and ACs to act with all powers described in our report
> WITHOUT the need to establish a legal entity associated with the SO or AC.
>
> Thank you for your help
>
> Mathieu
>
> Le 11/05/2015 23:42, León Felipe Sánchez Ambía a écrit :
>
> Dear Counsel,
>
>  A comment has been made in the forum which states:
>
>  In some countries (in particular in Switzerland), non-profit associations
> are, by law, accountable to their membership, in the sense that the
> membership has full powers to amend the bylaws (called statues in
> Switzerland), elect and revoke the Board, approve and review the budget,
> etc.  See articles 60 ff. of the Swiss Civil Code at:
>
>   https://www.admin.ch/opc/en/classified-compilation/19070042/index.html
>
>  If we accept the principle that accountability is ensured by the members,
> then I don't understand why the members of ICANN should not have full powers
> to amend the bylaws, set the budget, etc.
>
> We would like to test the accuracy of this comment. To get the complete
> picture, you can find the full comment here:
>
>
> http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00000.html
>
>  This is not urgent so I please ask you kindly to address the outstanding
> questions identified before addressing this comment.
>
>  Best regards,
>
>
>  León
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>
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>
>
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