[CCWG-ACCT] Question regarding UAs

Tue May 19 06:03:19 UTC 2015

Hi Greg,

This comment has confused me:

> and the contract between the SO/AC and the UA (if one is even needed) would be much simpler.

How can there be a contract between the SO/AC if the SO/AC is not a legal entity?

Cheers,

Chris

> On 19 May 2015, at 15:19 , Greg Shatan <gregshatanipc at gmail.com> wrote:
> 
> An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members.  In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more.  They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC).  I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended.
> 
> On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs.  This creates some secondary issues.  Legal entities have Bylaws or similar rules; people don't.  So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person.  With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler.  If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly.  With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations).  Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed.  This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover.  Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN.
> 
> 
> Greg
> 
> On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>> wrote:
> hi all, hi Alan
> 
> I think these are exactly the sorts of questions we do need to unpick.
> 
> My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.
> 
> It avoids all the concerns about who needs to be chosen etc.
> 
> I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.
> 
> cheers
> Jordan
> 
> 
> On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca>> wrote:
> I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.
> 
> But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).
> 
> I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?
> 
> I will not be able to join the call in a few hours, but will listen to the recording later in the day.
> 
> Alan
> 
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