[CWG-Stewardship] On "Entity" and incorporation - key questions to frame our discussion

[Guru Acharya]

Bertrand,

*1) About W3C*
W3C enters MoUs using its host organisations (MIT,ERCIM and Keio) as legal
vehicles. See for example
http://www.w3.org/2004/05/W3C-OMA-Agreement-FINAL.html
I am of the opinion that MoUs that W3C enters without using host
organisations as legal vehicles will not be legally enforceable.

*2) About IETF*
Substantial concerns were raised about the IETF MoU (as proposed) not being
legally enforceable.
See www.ietf.org/mail-archive/web/ianaplan/current/msg01370.html

Greg, in another mail, had highlighted the essential components for any
MoU/SLA/etc to amount to a enforceable contract. I believe both parties
being legal entities (or at least fictionally treated so by law) is a
necessary criteria.

One way of enforcing a MoU between GNSO (as an internal structure of ICANN)
and IANA (as an internal division of ICANN) is that the MoU can be given
sanctity through ICANN by-laws. Unfortunately, by-laws can easily be
changed raising serious accountability issues.


On Mon, Dec 1, 2014 at 9:58 PM, Bertrand de La Chapelle <
bdelachapelle at gmail.com> wrote:

> I am afraid this is not that clear.
>
> From what I have been told by someone knowledgeable, the IETF is not per
> se incorporated, and the MoU was signed by the President of ICANN (a legal
> entity) and the Chairs of the IETF and the Internet Architecture Board
> (neither of which is a legal entity). It was not through ISOC in that case,
> although ISOC does provide the IETF a lot of support and contracting
> capacity in other areas.
>
> In any case, my question is a more general one. Is incorporation required
> to "contract"?
>
> If this is really required, how did the W3C manage to organize itself
> during many years, simply by having a series of "host agreements" with
> three universities?
>
> I am a bit stubborn, but I am afraid we are not answering this in full
> detail.
>
> B.
>
>
>
>
>
> "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de
> Saint Exupéry
> ("*There is no greater mission for humans than uniting humans*")BERTRAND
> DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail
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> On Mon, Dec 1, 2014 at 5:16 PM, Milton L Mueller <mueller at syr.edu> wrote:
>
>>  Bertrand,
>>
>> I think your question has already been answered
>>
>>
>>
>> 1)      *Is incorporation required to "contract"?* Given that the IETF
>> seems to have an MoU with ICANN (among other arrangements with other
>> "entities"), I would suppose that the answer is no. Can someone clarify
>> this important point?
>>
>>
>>
>> MM: Yes, it is. IETF contracts via ISOC.
>>
>>
>>
>
>
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