[Acct-Legal] Request for advice on Swiss law

Tue May 12 06:45:36 UTC 2015

Counsel,

Given the discussion we’re holding. I please ask you to put this assignment on hold until the legal sub-team comes to a conclusion.

Best regards,

León

> El 11/05/2015, a las 22:29, Greg Shatan <gregshatanipc at gmail.com> escribió:
> 
> 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 <mailto: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 <mailto: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 <tel:%2B1.213.896.6061> (LA direct)
> +1.650.565.7561 <tel:%2B1.650.565.7561> (PA direct)
> +1.323.708.2405 <tel:%2B1.323.708.2405> (cell)
> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
> www.sidley.com <http://www.sidley.com/>
>  <http://www.sidley.com/> SIDLEY AUSTIN LLP
> 
>  
> 
>  
> 
> From: ccwg-accountability5-bounces at icann.org <mailto:ccwg-accountability5-bounces at icann.org> [mailto: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 <mailto: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 <mailto: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 <mailto:leonfelipe at sanchez.mx>>, ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>
> Cc: Thomas Rickert <rickert at anwaelte.de <mailto:rickert at anwaelte.de>>, Steve DelBianco <sdelbianco at netchoice.org <mailto:sdelbianco at netchoice.org>>, Cheryl Langdon-Orr <langdonorr at gmail.com <mailto:langdonorr at gmail.com>>, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>>, "Burr, Becky" <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz>>
> 
> Responder a: Mathieu.Weill at afnic.fr <mailto: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 <tel:%2B33%201%2039%2030%2083%2006>
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
> Twitter : @mathieuweill
> *****************************
>  
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>  
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