[CCWG-ACCT] Question regarding UAs

Tue May 19 21:55:59 UTC 2015

It's been made clear several times that each SO/AC will have broad leeway
to decide how to create a corresponding legal entity. It's up to the SO/AC
who the members/officers of the UA or other legal entity might be.  So, if
the SO/AC "takes exception," they can choose another path; it's up to the
group. (In any event, it is the UA, and not the chair/vice chair, that is
the alter ego.)

Also, this is not being driven by "the right to participate in the
governance of IANA."  I'm not sure where you got that idea.  This is being
driven by the desire to hold ICANN to a greater degree of accountability
for all of its operations.  IANA is only a small part of that, and not
among the most controversial either.  It's the right to participate in the
governance of ICANN that is at stake -- and that is far from a simple
technical and operational matter.  This is quite a fundamental
misunderstanding of the aim and purpose of the entire CCWG; which causes
your exhortation to "get real" to seem rather ironic.

Furthermore, there are not that many SO/ACs, and only a subset of them
appoint directors to the Board. "Each and all" is both incorrect and  Only
those that appoint voting Directors need to create a legal entity to act as
the ICANN Member.  There are only *four* of these - GNSO, ccNSO, ASO and
ALAC.  The other ACs only appoint liaisons and thus do not need to be
members.  (The NomCom is a special case, and needs to be dealt with
appropriately, but that is hardly a "deal-killer.")

On Tue, May 19, 2015 at 5:38 PM, CW Mail <mail at christopherwilkinson.eu>
wrote:

> The mind boggles!   So, one would require that each and all of the ICANN
> supporting organisations and advisory committees would have to re-create
> themselves as an UA or similar in order to have the right to participate in
> the governance of IANA - that which we have often been told is a simple
> technical and operational function.
>
> >
>
> such structures will be difficult for the overall community to understand
>>>>>
>>>>>
> I can think of more than one SO/AC which might take exception to the
> proposition that their chair and vice chair(s) would become their
> 'alter-ego' in this context.
>
> As I think I have said before, please get real.
>
> CW
>
>
> On 19 May 2015, at 22:53, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Kavouss,
>
> Each SO/AC would establish a UA, which would be an "alter ego" of that
> SO/AC.  Legally, the UA needs to have at least two members, and the members
> need to be legal persons (which could be natural persons or legally
> recognized entities).  The UA members could be the chair and vice chair(s)
> of a SO/AC, or the UA members could be all the members of the SO/AC, or
> anything in between.  There is no need to establish any UA other than the
> one that is acting as the SO/ACs alter ego.
>
> This is the basic model.
>
> There could be variations. An SO/AC could decide to form another type of
> legal entity (non-profit corporation (in California, called a "public
> benefit corporation" or a "mutual benefit corporation"), limited liability
> corporation, etc.), rather than forming a UA.  The alter ego entity could
> be located in a jurisdiction other than California.  If the SO/AC does not
> appoint any board members, it could even decide not to be a Member of
> ICANN, in which case it does not need to form a UA or any type of legal
> entity.
>
> That is my understanding.  I hope this helps.
>
> Greg
>
> On Tue, May 19, 2015 at 8:01 AM, Kavouss Arasteh <
> kavouss.arasteh at gmail.com> wrote:
>
>> 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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>>>>>
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