Ho Joop, here you have a non-US lawyer, even if I try hard not to behave as
such ;-)
A) Incorporation?
I personnally think is an added, unnecessary complication leading to added,
unnecessary bereaucracy . But it reads like ICANN *wants* the SO to be
separately incorporated, and what we want is a wroking DNSO, not a perfect
design that never will fly.
At the end of the day, it willl cost more money and be less efficient, but it
will not be a decisive factor in DNSO success or failure.
B) Where?
It depends, indeed.
In principle, incorporating where your assets (or simply your ass) is is a
common practice. And a wise one. Fiscal reasons might dirve you to consider
some nice Caribbean Islands or Andorra but this is not an issue at all for the DNSO.
The jurisdiction in which you incorporate has also some reputational eefects
on the corporation.In case you do so "abroad", people might believe it is done
to "avoid" liaility risks (which is often not the case). If you incorporate in
some fancy jurisictions (and I use Andorra again to prevent anyone to feel
insulted, as I think I'm the only Catalan aboard...) some people might suspect
you have something to hide....
For the rest of it, corporate/association laws are becoming closer and closer
over time, and mst of them are perfectly acceptable.
The issue with DNSO is that there is not an "evident" place for incorporation.
Its activity has no geographic bound. So it could be realy "anywhere".
Netherlands (your name sounds Dutch) or New Zealand (I think you are
established there) would be OK. But then you would have everyone why New
Zealand and not Korea or Itasly.....
If we really want slgihtly superior legal orders and jurisdictions, well we
have two of them: Delaware, where most US corporations (especially for-profit)
tend to incorporate. And Switzerlnad, for Int'l non-for-profit associations
(look,exactly what we are discussing about!!).
Why are these two legal orders superior? Because they ahave expcialized in
offering more solutions, more flexible more adaptable upon time. And more
knowledegable courts.
The question is: do e believe that, in the name of "geogra`hical legal
diversity", at least one of the SOs should be incorporated outsde the US?. Uf
yes, then Switzerland is the best choice, with lots of otheres running not
that far behind, and many other better avoided.
If noone cares about incorparating outside the US one of the four new corps,
and prefers keeping complete legal uniformity and coherence, then the most
obvious choice is California, where ICANN has already been incorporated.
But we all really have much more serious questions on the talbe.
Amadeu