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

[Thomas Roessler <roessler@does-not-exist.org>]

On 2000-12-08 01:30:38 +0100, Jefsey Morfin wrote:

> 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 are asking a wild and confusing mix of questions.  Let me try to
bring some order into this:

- Your initial question - can a corporation without members enter
  into contracts? - is basically the question of whether a 
  « personne morale » (as you call it in France) can be considered
  non-existent by the laws in other countries.  I'm tempted to call
  this question silly, but then again, law people always come up
  with funny ideas. ,-)

  In any event, there doesn't seem to be a point in discussing that
  question among legal laymen on this list.  As a replacement, I'll
  heuristically note that contracts between « personnes morales » in
  different countries are being concluded all the time, without any
  such concerns being risen.  Also, answering your question with
  "no" wouldn't fit into any notion of free trade and the like which
  has been developed over the time.

  Thus, I'd conclude that the question you are rising here can be
  considered to have been solved, and that we don't need to go any
  deeper into it.

  Finally, if you are looking for an example of a society without
  members, just consider an arbitrary foundation.  It's quite normal
  that they do not have any members, that their founders are dead,
  and these beasts still function as « personnes morales ».

- You then go on to ask what happens to contracts between such a
  « personne morale ».  This implies the question on what forum and
  law would apply.  This is a well-known question, and a whole
  branch of legal science is busy examining it.  It's called
  International Private Law, there are quite a few lawyers who get
  it wrong, and it's another topic we don't need to consider here.

- Then, taxation.  This is another question you can ask specialized
  lawyers about.  Let me just note that the fact that something is
  being recognized as a « personne morale » doesn't prevent any
  legislation from applying the most interesting concepts to such
  societies.  But hey, that's a domestic problem of ICANN in the
  U.S., so we don't have to deal with it.

- You then talk about private contracts "between the chairs of the
  two parties".  Now, this is almost interesting.  Let's look at the
  situation you are proposing: There are two « personnes morales »
  entering into a contract which is, in turn, signed by individuals
  representing these « personnes morales".  We can safely assume that
  these individuals are acting with the proper powers.  Now, how
  should any court construct a contract between these individuals -
  as individuals! - here?  We have a rather clear case of
  « répresentation » here, which could in the worst case lead to a
  void contract, but of course not to these individuals entering
  into a mutual contract.  After all, they don't _want_ to enter
  into a contract as individuals - which means that they won't.

To make a long story short: The questions you are rising here are
mostly relevant, and the answers you are giving are mostly wrong. If
you really worry about these legal questions, please go for
professional legal consulting.  If you are just trying to create
confusion, stop it.

> 2. from a possible need for [Statutory] Members 

Which does not exist.  "Ex falso quodlibet" - so you can conclude
anything from here on.

> 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.

Well, I think it's a widely-held secret that the choice of
California corporation law for ICANN wasn't the best one.  Everyone
with the exception of our friends from the U.S. would even argue
that the choice of the U.S. as the country hosting the corporation
was a bad one.  Now, we have to live with that, and should look for
reasonable solutions of the actual problems.  However, we should not
let ourselves get distracted by legal pseudo-problems.


Finally, I should of course add that I haven't had any formal legal
training.

-- 
Thomas Roessler                         <roessler@does-not-exist.org>