[CCWG-ACCT] FW: Regarding GAC participation

Thu Oct 1 14:24:41 UTC 2015

James,
If you refer to Unincorporatede association, we have dropped it totally and
do not wish to come back to such a  legally complex process
Regards
Kavouss

2015-10-01 16:11 GMT+02:00 James Gannon <james at cyberinvasion.net>:

> It was one of the core components of the 2nd draft report. And we have
> received feedback on the SMCM which of which it is a component of, while I
> don’t feel we should discuss it directly its definintly a current issue.
>
> -James
>
> From: <accountability-cross-community-bounces at icann.org> on behalf of
> Kavouss Arasteh
> Date: Thursday 1 October 2015 15:05
> To: "Chartier, Mike S"
>
> Cc: "Accountability Cross Community (
> accountability-cross-community at icann.org)"
> Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation
>
> Dear Mike
> We have not agreed that it is current subject.
> Who has so decided?
> Regrards
> Kavouss
>
> 2015-10-01 10:50 GMT+02:00 Chartier, Mike S <mike.s.chartier at intel.com>:
>
>> Kavouss,
>>
>>                “unincorporated association” is the current proposal, so
>> definitely not abandoned.
>>
>> Mike
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Rosemary
>> E. Fei
>> *Sent:* Thursday, October 1, 2015 4:44 AM
>> *To:* 'Kavouss Arasteh'
>>
>> *Cc:* Accountability Cross Community (
>> accountability-cross-community at icann.org)
>> *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
>>
>>
>>
>> Dear Kavouss:
>>
>>
>>
>> Since it is a sensitive point, please let me clarify that I was merely
>> letting the list know where it can find the answer to a narrow question
>> about unincorporated associations that has been asked and answered before,
>> and which came up in an email thread today.
>>
>>
>>
>> I am certainly not proposing that the CCWG consider (or reconsider)
>> anything, if that’s what you mean by “coming back” -- such a proposal would
>> exceed my remit from the CCWG as I understand it.  I would not insert
>> myself into the CCWG’s discussions in that way.
>>
>>
>>
>> Rosemary
>>
>>
>>
>> Rosemary E. Fei
>> Adler & Colvin
>> 235 Montgomery Street, Suite 1220
>> San Francisco, CA 94104
>> 415/421-7555 (phone)
>> 415/421-0712 (fax)
>> rfei at adlercolvin.com
>> www.adlercolvin.com
>>
>>
>>
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>>
>> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
>> <kavouss.arasteh at gmail.com>]
>> *Sent:* Thursday, October 01, 2015 1:35 AM
>> *To:* Rosemary E. Fei
>> *Cc:* Accountability Cross Community (
>> accountability-cross-community at icann.org)
>> *Subject:* Re: [CCWG-ACCT] FW: Regarding GAC participation
>>
>>
>>
>> Rosemary
>>
>> Are you coming back to "*a California unincorporated association "*
>> again???
>>
>> We have abadonned that
>>
>> :
>>
>> Regards
>>
>> Kavouss (
>>
>>
>>
>> 2015-10-01 2:24 GMT+02:00 Rosemary E. Fei <rfei at adlercolvin.com>:
>>
>> Dear CCWG:
>>
>>
>>
>> We responded to the question in red in the email below, which someone
>> also asked in the August 25 webinar.  We added the response when we were
>> asked to review and edit the webinar Q&A.  I’m not sure when this got
>> posted, but I think it was on the “last modified” date of September 21.
>>
>>
>>
>> https://community.icann.org/pages/viewpage.action?pageId=54695403
>>
>>
>>
>> See the CCWG Legal Counsel’s Response to Question 48, reproduced here:
>>
>>
>>
>> *CCWG Legal Counsel's Response*: * If the sole member is formed as a
>> California unincorporated association (since it would need to be a legal
>> person in order to be a statutory member of ICANN), participants in the
>> Sole Member unincorporated association would not liable for the debts,
>> obligations, or liabilities of the association solely by reason of being
>> participants, as stated in California Corporations Code Section 18605.*
>>
>> *Corporations Code Section 18630 simply points out the legal principle of
>> common-law alter-ego liability, applicable not only to unincorporated
>> associations but also to corporations and other limited-liability entities
>> such as limited liability companies.  For example, under this principle a
>> corporate shareholder could be held liable for the debts of a corporation
>> that is operated so closely by or in connection with the shareholder that
>> it has ceased to have a separate existence for practical purposes (i.e.,
>> the corporation has been operated as the shareholder’s mere “alter ego”).
>> Typically, however, a finding of alter-ego liability requires a number of
>> egregious facts, including a commingling of funds between the shareholder
>> and the corporation and a failure to observe corporate formalities.  Courts
>> may also require a demonstration of outright fraud.  If the CMSM is
>> administered according to the governance provisions to be included in the
>> ICANN Bylaws, we do not believe there would be a basis for a court to
>> assert alter-ego liability against its participants.*
>>
>>
>>
>> While this does not respond to all of the questions posed in the email
>> below, I hope that at least this one answer is helpful.
>>
>>
>>
>> Rosemary
>>
>>
>>
>> Rosemary E. Fei
>> Adler & Colvin
>> 235 Montgomery Street, Suite 1220
>> San Francisco, CA 94104
>> 415/421-7555 (phone)
>> 415/421-0712 (fax)
>> rfei at adlercolvin.com
>> www.adlercolvin.com
>>
>>
>>
>> _____________________________
>>
>> Adler & Colvin is a San Francisco Green Business certified by the City
>> and County of San Francisco. Please consider the environment before you
>> print this email.
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>>
>> *From:* accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Perez
>> Galindo, Rafael
>> *Sent:* Wednesday, September 30, 2015 2:26 AM
>> *To:* accountability-cross-community at icann.org
>> *Subject:* [CCWG-ACCT] Regarding GAC participation
>>
>>
>>
>> Good morning/afternoon/night to All
>>
>>
>>
>> In order to make an informed decision on the role the GAC could take on
>> in the different models under discussion, it is still unclear to me what
>> the legal implications of participation in a voting mechanism are for
>> governments, even more in the absence of a precedent or parallel that we
>> could draw on.
>>
>>
>>
>> Hence, the ability for governments to participate in wider community
>> voting processes under a foreign jurisdiction is a point I would like to
>> raise with the CCWG's legal advisors, along with the issue of governments
>> liability as participants e.g. in the sole member of a non-for-profit
>> corporation (which stems from the fact that governments would be subject to
>> CA jurisdiction). This issue was first raised by Anne Aikman-Scalese
>> (9th september email) and I believe no answer has been provided to date:  "*[...]
>> I still did not receive an answer with respect to my question regarding the
>> applicability of CA Corporations Code Section 18630 which provides as
>> follows:   "Notwithstanding any other provision of this chapter, a member
>> or person in control of a nonprofit association may be subject to liability
>> for a debt, obligation, or liability of the association under common law
>> principles governing alter ego liability of shareholders of a corporation,
>> taking into account the differences between a nonprofit association and a
>> corporation.".*
>>
>>
>>
>> In conclusion, I kindly ask the Co-Chairs to forward these questions to
>> the CCWG legal advisors about (1) ability, (2) legal implications and (3)
>> liabilities of governments if they took part as voting members in the
>> community mechanism to be deployed under CA jurisdiction. An answer should
>> be provided for the three models under discussion (SMM, Single designator
>> and MEM).
>>
>>
>>
>> Looking forward to receiving the legal advice, thank you and best regards
>>
>>
>>
>> Rafael
>>
>> GAC_SPAIN
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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>>
>>
>
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