Re: [icann-eu] Members of California non-profit corporations

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Mike,
I obviously studied it in detail. This is why I used the general word 
"Member" as

At 19:26 07/12/00, Mike Roberts wrote:
>See <http://www.icann.org/santiago/membership-analysis.htm>

says in V.1 "As described above, California law defines a "member" (i.e., a 
Statutory Member) as "any person who, pursuant to a specific provision of a 
corporation's articles or bylaws, has the right to vote for the election of 
a director or directors . . . ." what is also what the law of countries not 
accepting the "dead hand" concept (that a corporation may be hold by no 
hone, by a 'dead hand') will also accept that definition.

In my post there are two different things.

1. contracts and relations with 'no dead hand' countries will actually turn 
being private contracts. Since the US courts also accept to consider the 
foreign laws when ruling international affairs, a contract signed between 
the ICANN and a 'no dead hand' country will most probably broken   by a US 
court refereeing itself to the foreign low because its text would be 
analyzed as of commercial nature. The tax impact is also to be considered 
since if declared being private the money exchanges will be deemed at the 
best as between the Chairs of the tow parties. Obviously being private the 
contract will not be binding the ccTLDs and could not be accepted by the GAC.

You will note that the "Membership-analysis" document does not _even_ 
consider this point. This document is purely American/CA law oriented and 
pays no attention to international essence of the ICANN. Since no exclusion 
or disrespect is intended, one must conclude that most of the Membership 
issues has been overlooked and that the ICANN has been devised as a 
Californian Golf Club (cf. example given), the strings "internat" and 
"foreign" not even belonging to the text. One therefore can say that the 
ICANN Membership as not been discussed yet. IMHO this is the origin of most 
if not all of the problems ICANN is facing today. To take an image, it is 
as if the UN had been built as a south-eastern-Manhattan Club. It could 
certainly organize many things they do, but not all of them.


2. from a possible need for [Statutory] Members I looked for different 
solutions. I found that the solution of considering the root as the 
directory of the [statutory] Members had not only far more pros than cons, 
but was obvious to every non informed people. I also realized that it was 
what everyone was demanding under different formulations. .

I therefore documented it in the post-scriptum of my post. I think it 
should be seriously investigated as a global and stable response to the 
today difficulties of the ICANN, even if the problem of the 'no dead hand' 
country was solved in an other way. I translate that into the C in the 
ICANN world being changed from Corporation (many people in the world 
understand as money oriented) to Cooperation (everyone perfectly 
understand). Switching from an "irritated THEY, the ICANN" model to a 
dynamic "WE, the ICANN" model. I feel I picked that idea somewhere :-).

I note that I received some remarks about the California law not allowing 
Corporation to be Members of the ICANN. I suppose that there ways to 
address that point. Also DNSO/BC gather corporations and unions of 
corporations as NSM.

Jefsey