[CCWG-ACCT] FW: Regarding GAC participation

[Malcolm Hutty]

On 01/10/2015 17:20, Seun Ojedeji wrote:
> Hello Malcolm,
> 
> Are you certain there is no lega person-hood required because that
> section referenced by James seem to imply that. I quote a specific
> section below:
> 
> "... the Community Mechanism as Sole Member Model would be a *legal
> person* created through the ICANN Bylaws as an unincorporated
> association...."

Legal person-hood is not required of the SOACs in the SMM: our counsel
have been quite clear on that.

Californian law would recognise the Single Member as having legal
personality. But it still doesn't need any of the normal accoutrements
of artificial persons (such as registration, officers, etc) that might
otherwise make this problematic.

I hope that is now clear.

> Regards
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
> 
> On 1 Oct 2015 15:39, "Malcolm Hutty" <malcolm at linx.net
> <mailto:malcolm at linx.net>> wrote:
> 
> 
> 
>     On 01/10/2015 15:27, James Gannon wrote:
>     > Kavouss,
>     > I refer you to paragraph 306 of our 2nd draft proposal which states:
>     >
>     >     As required by law, the Sole Member in the Community Mechanism as
>     >     Sole Member Model would be a legal person created through the
>     ICANN
>     >     Bylaws as an unincorporated association. The Community
>     Mechanism as
>     >     Sole Member Model would rely on direct participation by SOs
>     and ACs
>     >     in this sole member for exercise of community powers but would not
>     >     require any of them to have legal personhood. The Sole Member
>     would
>     >     have no officers or directors and no assets.
>     >
>     > So it is clear that we have not dropped unincorporated association
>     > totally as the SMCM would be required to be an unincorporated
>     association.
>     >
>     > I hope that makes things clearer as to what I am referring to.
> 
>     I think there is a simple miscommunication here.
> 
>     Our first reference model was Empowered SOACs as Unincorporated
>     Associations. This would require turning the SOACs into UAs. That was
>     problematic. We dropped it. It's not coming back.
> 
>     Our current reference model is the Single Member. This wouldn't require
>     the SOACs to change at all. Californian law may deem the Single Member
>     to be considered a UA in itself, but this is just a matter of statutory
>     construction. The Single Member has no registration or reporting
>     requirements, no need for officers, directors, assets etc. It is simply
>     a legal notion. So there's really no need to focus on the fact that a
>     lawyer would construe the Single Member as a UA, because that doesn't
>     imply what people would think it implies.
> 
> 
>     --
>                 Malcolm Hutty | tel: +44 20 7645 3523
>     <tel:%2B44%2020%207645%203523>
>        Head of Public Affairs | Read the LINX Public Affairs blog
>      London Internet Exchange | http://publicaffairs.linx.net/
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-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

                 London Internet Exchange Ltd
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         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA