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

[Jeff Williams <jwkckid1@ix.netcom.com>]

Thomas and all,

  Thomas, your last comment, "Finally, I should of course add that I
haven't had any formal legal training.", clearly indicates that most of
you post below is at least
debatable.  None the less, we [INEGRoup] happen to agree with most of
your comments, (See below) as a group.

  I would caution you that to make such legal "Leaps of Faith" should be
avoided unless you are well schooled in their intricacies, which you
clearly
state you are not.

Thomas Roessler wrote:

> 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>

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
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