[CCWG-ACCT] FW: Regarding GAC participation

Thu Oct 1 19:59:16 UTC 2015

Just to clarify what appears to be a misunderstanding and to echo Rosemary’s earlier email:  The Sole Member would need legal personhood as we have described and as the Second Proposal reflects.  The most straightforward way to have legal personhood is as an unincorporated association. This is a fairly simple matter that would be handled in ICANN’s bylaws.  We discussed this in Paris at the time the Sole Member idea was described.  And the Second Proposal accurately describes.

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Kavouss Arasteh
Sent: Thursday, October 01, 2015 3:53 PM
To: Greg Shatan
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] FW: Regarding GAC participation

Dear James ,
Thank you very much for the message.
NO THAT IS NOT THE CASE.
iT WAS AS SUCH TILL BA but we abandonned the concept of Unincorporated Association in BA as the Lawyers mentioned we could get ride of that complex issuer.
Pls read the outcome of our meeting.
Regards
Kavouss

2015-10-01 19:37 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>:
This is not limited to California.  There are a number of US states where an unincorporated association is a legal person.  There are also other types of legal persons that can be formed without incorporation, such as partnerships and trusts.  So the etymology is not dispositive.

Common law is also a bit of a misnomer as used here.  Although the US is a "common law" country, we have miles and miles of statutes, codes and regulations (federal, state and local) that make up our laws.  There are underlying principles and defaults that come from "common law," but finding these in their natural state in the law is about as likely as finding an old growth forest in Manhattan.  As I understand it, the more relevant distinction between common law and civil law, in action, is that under common law, judicial decisions create binding precedent that dictate how the statute must be interpreted (a gross oversimplification), while civil law maintains the primacy of the statutory text (plus any regulatory overlay, etc.)

It may be the case in other common law jurisdictions that unincorporated associations have been granted legal personhood, though I'm not sure that's relevant.  What's more relevant is that under principles of comity and other international law principles, the personhood of an entity in its state of domicile will generally be respected in other jurisdictions.  US courts don't turn away GmbH and SpA entities, for instance, even though they aren't the same as US entity types.  Similarly, the UA form should not be disregarded in a foreign jurisdiction that does not itself view UAs as legal persons.

Greg

On Thu, Oct 1, 2015 at 12:43 PM, Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
This has echoes of how I entered the discussion a month or two back . . .

I have been informed, and now have the understanding, that **IN CALIFORNIA**, an unincorporated association is a legal person under statute.

As mentioned much earlier, this runs rather counter to the common-law concept of UAs; they have no separate identity to that of their members.

The terminology is the clue here incorporation being the act of the birth (making corporeal) of a (legal) person. So something that is unincorporated cannot have a separate identity.

This means UAs are regarding as highly dangerous things in British/common law jurisdictions, as the members and officers may be subject to unlimited personal liability for the acts of the association.

Nonetheless I am satisfied that the above is the advice received to the CCWG from lawyers admitted in the jurisdiction and I am sure they will be happy to rehearse it on the list.

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...."

Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.

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