Ho Joop, here you have a non-US lawyer, even if I try hard not to behave as
>such ;-)
>
Ho Amadeu,
Et tu, Brute? :-)
I have tried my whole life not to behave as one. But deep down, it's
always there.
>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.
>
It will cost a lot more money, this is actually one of my major concerns.
If the SO charges high fees to cover the cost, it may have trouble
attracting the general membership that will make it credible as not just a
producer's cartel.
If it doesn't charge high fees, and does not have a fighting fund, it could
be wiped out through the inevitable court action.
>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....
>
Amadeu, you have touched upon something fundamental. Governance and
avoiding liability for decisions does not go together very well.
Politicians' heads have to be rollable.
The ICANN bylaws are centered around avoiding liability and the new
"instructions" for the SO applications make it even clearer.
There must be such a thing as political accountability or you will invite
revolt.
If ICANN wants to lay the responsibility for policymaking with the DNSO,
then the DNSO's prime defense against all action should be the will of the
majority of the Internet stakeholder community.
The courts in all reputable jurisdictions will recognise this, if the
bylaws of the DNSO reflect a fair democracy.
On the other hand, the present incorporators can be held liable for
creating bylaws that could be called a "racket".
>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.....
>
You are totally right. Actually I thought of the Netherlands, because
corporations that have their activity outside Holland are very lightly
taxed. But are the activities of the DNSO outside the national borders,
when it would have members resident in Holland?
This whole thing illustrates that a "Cyberspace" jurisdiction is needed.
It will come into existence someday, but only if the netizens are willing
to pay for it. TANSTAAFL.
The Fair Hearing Panels could be a point of chrystallisation.
>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.
>
These are important considerations.
>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.
The choice is perhaps political as well as practical. Kent raised a good
point. :-\
>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.
>
Yes. How to broaden the basis of the DNSO.
The bylaws have to come from the broadest possible group. The timeframe in
which to accomplish that is very short indeed.
You have to start inviting people in, rather than just allowing them in.
Frankly, I cannot understand how ICANN cannot have it's own Membership
Organisation ready and yet demand that the SO's would have theirs ready by
february 5 .
Ready to assume liability for DNS policymaking?
--Joop--
http://www.democracy.org.nz/