[Acct-Legal] Fwd: Request for advice on Swiss law

Tue May 12 03:29:18 UTC 2015

Ed,

This was a comment in the Public Comment forum.  Mr. Hill (who happens to
be resident in Switzerland, I believe) doesn't need an SOI.  I believe Mr.
Hill made several rather lengthy and somewhat tendentious submissions to
the ICG and possibly to the other communities, in a somewhat similar vein.
You might be amused by them.

Greg

On Mon, May 11, 2015 at 7:55 PM, Edward Morris <egmorris1 at toast.net> wrote:

> Thanks Josh for your response.
>
> I once again want to reiterate my opposition to any further inquiry of
> this sort that focuses exclusively on Switzerland. I think it is absolutely
> ridiculous at this stage to open up the question of jurisdiction, but if we
> are going to do so I request that Delaware, Ireland, Estonia and Iceland
> all be examined under the same terms as Switzerland.
>
> The post by Mr. Hill which prompted this inquiry did talk about ICANN's
> incorporation, not just that of SO/AC's. It was also very prejudiced in
> that:
>
> Quite apart from that, ICANN should not be incorporated in the USA, or in any other powerful
> state that might be tempted to interfere with ICANN for political or
> economic reasons. It should be incorporated in a neutral state that is
> unlikely to interfere, for example Switzerland.
>
>
>
> it explicitly rejects jurisdiction in the United States on grounds that a
>  "powerful state" may be more tempted to interfere with ICANN for
> "political or economic reasons". It is my view that: 1. the United States
> has generally been a good steward of the internet, and 2. history is
> replete with examples of less powerful neutral states acting in their own
> self interest. Switzerland included. I'd prefer that a change in
> jurisdiction be based upon fact rather than upon a speculative theoretical
> assumption. I also sense this is neither the time or place for this
> discussion.
>
> I'm sorry for being a bit of a pain on this but it's a matter of
> principle. I'm opposed to opening up jurisdiction at this point for a
> number of reasons that most of us are familiar with. However, if we are
> going to do so equity and simple competence in fulfilling our duties oblige
> us to look at more options than a single mountainous country in central
> Europe.
>
> On another related matter: I have been unable to locate Mr. Hill's SOI. If
> somebody would be so kind as to direct me to it I would be appreciative.
> I'm sure it is my oversight.
>
> Thanks,
>
> Ed
>
> On Tue, May 12, 2015 at 12:22 AM, Hofheimer, Joshua T. <
> jhofheimer at sidley.com> wrote:
>
>>   Leon and CCWG Colleagues,
>>
>>
>>
>> Thank you for the note and request.  If you recall, Sidley previously
>> looked briefly at Swiss non-profit law as part of our preliminary response
>> to CCWG initial questions.  See the response to Question No. 3, and
>> specifically pages 8-9 of our memo to you dated March 27, 2005, a copy of
>> which is attached for your convenience.
>>
>>
>>
>> In the memo, we state that Swiss NGOs are typically established as
>> nonprofit associations.  Such associations have members, which must be
>> organized in some legally cognizable form.  In addition, for Swiss
>> International NGOs, the organization must have individual members of
>> different nationalities or private entities governed by different national
>> laws.
>>
>>
>>
>> Although the focus of our initial response was not directed primarily to
>> the legal status of “members” in a Swiss nonprofit -- and what would be
>> required to make an SO or AC a “legally cognizable form” -- we suspect that
>> we would have the same issue in Switzerland as we have in California.
>>
>>
>>
>> Of course, if you would like us to confirm with our colleagues in
>> Switzerland what legal status is required of a “member” under Swiss law, we
>> can ask that question.  We will await further instruction.
>>
>>
>>
>> Cheers,
>>
>> Josh
>>
>>
>>
>> *JOSHUA* *HOFHEIMER*
>>
>> Sidley Austin LLP
>> +1.213.896.6061 (LA direct)
>> +1.650.565.7561 (PA direct)
>> +1.323.708.2405 (cell)
>> jhofheimer 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:* ccwg-accountability5-bounces at icann.org [mailto:
>> ccwg-accountability5-bounces at icann.org] *On Behalf Of *León Felipe
>> Sánchez Ambía
>> *Sent:* Monday, May 11, 2015 3:16 PM
>> *To:* ccwg-accountability5 at icann.org
>> *Cc:* Steve DelBianco; Cheryl Langdon-Orr
>> *Subject:* [Acct-Legal] Fwd: Request for advice on Swiss law
>>
>>
>>
>> Resending this on behalf of Mathieu Weill.
>>
>>
>>
>>
>>
>> Best regards,
>>
>>
>>
>>
>>
>> León
>>
>>
>>
>> Inicio del mensaje reenviado:
>>
>>
>>
>> *De: *Mathieu Weill <mathieu.weill at afnic.fr>
>>
>> *Asunto: Re: Request for advice on Swiss law*
>>
>> *Fecha: *11 de mayo de 2015 16:49:28 GMT-5
>>
>> *Para: *León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>,
>> ccwg-accountability5 at icann.org
>>
>> *Cc: *Thomas Rickert <rickert at anwaelte.de>, Steve DelBianco <
>> sdelbianco at netchoice.org>, Cheryl Langdon-Orr <langdonorr at gmail.com>,
>> Jordan Carter <jordan at internetnz.net.nz>, "Burr, Becky" <
>> Becky.Burr at neustar.biz>
>>
>> *Responder a: *Mathieu.Weill at afnic.fr
>>
>>
>>
>> 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_19070042_index.html&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=lVD1ewGXc0pI0VmyoIob-CX4u0GrILJzUwmj5CGyLrs&s=olA8zNkpL5t3lJBwq1KVqj4zPEZkxdGil9usaEmuL18&e=>
>>
>>  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
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__forum.icann.org_lists_comments-2Dccwg-2Daccountability-2Ddraft-2Dproposal-2D04may15_msg00000.html&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=lVD1ewGXc0pI0VmyoIob-CX4u0GrILJzUwmj5CGyLrs&s=rw-R2-eazPUXLpqZEuOZgEx_Q7mFtc311lBwP_zGX0g&e=>
>>
>>
>>
>> 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 06
>>
>> mathieu.weill at afnic.fr
>>
>> Twitter : @mathieuweill
>>
>> *****************************
>>
>>
>>
>>
>>
>>
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