[CCWG-ACCT] Question regarding UAs

[Greg Shatan]

Chris,

Yes, I recognized this flaw myself in my follow-up email replying to Sam a
few minutes ago....  Please see that email for my revised thinking.

Greg

On Tue, May 19, 2015 at 2:03 AM, Chris Disspain <ceo at auda.org.au> wrote:

> 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>
> 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> 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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>>>
>>
>>
>>
>> --
>> Jordan Carter
>>
>> Chief Executive
>> *InternetNZ*
>>
>> 04 495 2118 (office) | +64 21 442 649 (mob)
>> jordan at internetnz.net.nz
>> Skype: jordancarter
>>
>> *A better world through a better Internet *
>>
>>
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>>
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