[CCWG-ACCT] Question regarding UAs

Tue May 19 20:27:58 UTC 2015

Hi Greg.

This comment has also confused me to:

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

What is the point of a contract between the SO/AC if the SO/AC is not a
legal entity in the first place? Just asking as it make no sense.

Why not keep it simple and clear in the makings from the start?

Sound like a better plan, so less problems arise later.

Regards

Balder

2015-05-19 14:01 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> People have different understanding of UA
>  It is necessary to clarify the followings:
>
> 1. When we refer to UA ,are we talking about  two or more(  say  three)
> natural persons , as chair and vice chair or their representatives within
> a SO or  an AC establishing that  UA ,?
> OR
> 2.When we refer to UA, we are talking about two or more  so and AC
> establishing an UA ?
> In case of the first one, is it necessary that UA established within that
> SO or AC also establish another UA among themselves or it is no longer
> necessary?
> Regards
> Kavouss
>
>
> 2015-05-19 8:05 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>
>> 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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