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

[Guru Acharya]

I reproduce Greg's mail on this list earlier:

<quote>
Some important basic legal points:

1.  An MOU is a contract.  It may leave more to the imagination than a
longer, more detailed document, but it is a contract.  Proposing an MOU
does nothing to move us away from having a contract.  Generally, all you
need to have a contract between two parties (more on that in a moment), is
an offer, the acceptance of that offer, some form of "consideration" (quid
pro quo or "this for that") and the intent to enter into a binding
agreement.  If you have these four things, you will have an enforceable
contract.  This is of course very high level, and there are many nuances,
qualifications, details, exceptions, etc. (one could spend a lifetime on
the subject, if one wanted), but these are the basics.  On the other hand,
if you don't have these things, you don't have a contract, and you have
nothing that binds the parties to perform their duties and obligations and
nothing that can be enforced -- a party can fail to perform and walk away
without consequences (as a legal matter).  Again, these are the basic
concepts.  So -- if you want something that is not a contract, what you end
up with is something that is not a promise and that can't be enforced if a
party fails to perform.  And why would you want that here?

2.  Getting back to the concept of "parties" to a contract: only "natural
persons" (that is, people) and *l*egal entities can enter into contracts.
Corporations and partnerships are legal entities; communities and
committees are not legal entities.  Therefore, communities and committees
cannot enter into contracts.  A legal entity of some sort is needed if a
contract is to be entered into.
</quote>

On Mon, Dec 1, 2014 at 10:38 PM, Guru Acharya <gurcharya at gmail.com> wrote:

> 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
>> bdelachapelle at internetjurisdiction.netemail bdelachapelle at gmail.com
>> twitter @IJurisdiction <https://twitter.com/IJurisdiction> |
>> @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88
>> 33 32www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER
>> DIALOGUE PROCESS]
>>
>> 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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>>
>>
>
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