[Acct-Legal] Request for advice on Swiss law

Mon May 11 23:32:04 UTC 2015

I agree with Edward that we should not pursue the alternative jurisdiction
question on a random basis.  I also agree that we need to be mindful of our
use of resources.

I also think that the question that we ended up posing to counsel ("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") is completely
unrelated to the public comment, other than the reference to Switzerland.
In the public comment, Mr. Hill proposes that each SO/AC member (e.g., you
and I individually or our employers or governments) be a direct member of
ICANN.  That's going down a completely different path than the question we
posed to counsel.  I suggest we unpose the question before we start
expending resources.

If we want to test the accuracy of the statements in the public comment, we
should first decide what those statements are.  I actually think this
public comment is mostly a series of red herrings and logical fallacies.
It boils down in my estimation to:

1. The proposition of direct membership.
2. The proposition that members of Swiss associations have greater powers
("full powers") than those in California Public Benefit Corporations.
 (This is supported by citation to a web page that appears to contain all
of Swiss civil law, and a section cite that is only the beginning of a very
long section.  Googling the word "budget," the only reference is
irrelevant, so clearly direct authority for his statements about full
powers are not to be found on this page.)
3. The proposition that we want those greater powers, if any in fact exist.
4. The proposition that US incorporation could subject ICANN to something
horrible ("unilateral sanctions").
5. The proposition that Swiss incorporation, by contrast, would not.

2, 4 and 5 are legal questions.  If we want to answer them at all, I think
we need to answer number 3 before we look at number 2; if the answer is
"no," than we don't need to look at number 2.

Number 4 has a high FUD factor -- consider that OFAC waivers have never
been an issue for ICANN.  Number 5 may have some truth, in that Switzerland
seems like more of a laissez faire jurisdiction, but 4 and 5 both ask to
prove a future event, which is just silly.  As for the US, we have a track
record of non-interference (both direct and by the passage of laws), other
than that directly related to NTIA's stewardship.  I would submit this
"grass is greener" analysis is a waste of time, and certainly not part of
Work Stream 1.

To reiterate, it is my strong belief that there is almost certainly nothing
to ask counsel about here, and if there is, not now, and not before
discussion of the underlying issues.

Greg

On Mon, May 11, 2015 at 7:00 PM, Edward Morris <egmorris1 at toast.net> wrote:

> 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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