In my opinion the most important sections for us are 9 and 11:
> 9. Supporting Organization Liability and Indemnity
>
> It is intended that Supporting Organizations and their councils will have
> a separate organizational identity from that of ICANN, and that ICANN's
> relationship with the SO's, to the extent necessary apart from the bylaws,
> will be by contract. Thus, ICANN's liability insurance and other corporate
> resources will not be available to Supporting Organizations.
>
> ICANN has been asked whether SO's are permitted to function as
> unincorporated associations, and whether they are permitted to have a non-
> U.S. corporate or unincorporated place of business. ICANN believes these
> are decisions best made by organizers of Supporting Organizations,
> following advice of counsel. ICANN does not intend to bias a recognition
> decision based on corporate form or location, provided that other
> requirements for recognition are met and that such a decision does not
> unnecessarily inflict administrative, financial or legal complexity on the
> SO or ICANN. Regardless of the specific organizational form chosen, the
> procedural rules of the proposed organization must meet commonly applied
> standards of organizational performance, integrity, and financial
> stewardship.
[...]
> 11. ICANN Contracts with Recognized Supporting Organizations
>
> Following recognition of a Supporting Organization, ICANN will execute a
> contract with the organization which formalizes the recognition, creates
> binding responsibilities on the parties, contains provisions for
> termination for cause, and establishes mutually agreeable financial
> conditions.
I'm afraid that there is no question that these sections together are
a very strong argument for a separately incorporated entity. Having
heard hints to this effect at the poisson meeting at IETF, I am not
surprised, though I am somewhat disappointed. I note that they do
say that we could go as an unincorporated association, but my
understanding is that would be suicidal from a liability point of
view.
We could try to convince ICANN to do things differently, but I
suspect that would be a lost cause -- they obviously consulted with
their attorneys before making this decision, and have made plans
based on the structural and legal implications of the SOs being
separate organizations. And pressing that case would take a lot
of time...I don't want to foreclose the possiblity of approaching
ICANN, but I don't want to hold my breath waiting for them to change
their minds, either.
So I suggest we proceed as if we need to incorporate. At least, we
should get all our ducks in order to cover that eventuality.
One of the characteristics of the INTA draft is that it has a rather
heavyweight corporate structure. The PSO, on the other hand, is
discussing a *very* lightweight corporate structure.
Personally, I much prefer the lightweight approach. Speaking off the
top of my non-lawyer head, I think we could charge certain members of
the names council with being the corporate officers/BoD, under the
complete control of the names council. I believe then we need to add
clauses concerning the selection of these officers. We would also
need to create a bit of financial mechanism, because now the dnso
corp needs to manage its own funds.
But this raises a very delicate question, which we might as well get
to right now: if we must incorporate, where shall we do it?
Here are some choices:
California Public Benefit corp, just like ICANN
Delaware corp
Swiss non-profit association
??
I understand the sensitivity of non-US members to the idea of
incorporating in the US. On the other hand, I think the quickest
possible incorporation would be to duplicate ICANN's bylaws and
articles, make the necessary changes, and go with them. This would
put ICANN and DNSO in the same legal jurisdiction, which might be an
advantage or disadvantage.
Comments please? We will need to move fairly quickly...
kent
-- Kent Crispin, PAB Chair "Do good, and you'll be kent@songbird.com lonesome." -- Mark Twain