At 11:37 AM 1/14/99 -0500, you wrote:
>Just two comments: First, the applicable law is not the law governing
>individual members of the board (persons or corporations) but the law
>governing the institution--ICANN.
>
>Second, the law applicable to a contract among institutions is usually the
>law in which the contract is made. The internal affairs of the parties can
>be governed by different laws and yet the relationship between them can be
>governed by the law governing the contract. In addition, contract parties
>may determine the laws that govern their relationship. For example, an SO
>organized in France can contract with ICANN and agree that the relationship
>will be governed by NY law.
>
>Simple! Happy new year.
>
>Tamar
I agree that it's simple if the parties simply agree, but as the
matrimonial lawyer advising the loving couple on a pre-nuptial agreement
says "things change." How will this play out if ICANN and the SOs are at
loggerheads. Yes, parties from different jurisdictions can contractually
choose any forum to govern their relationship, if their relationship is
definable. However, ICANN and the SO will have on-going obligations of
their own, ICANN to California, and the SO to, for example, France. In the
ICANN by-laws, ICANN has already set out various aspects and parameters of
an SO. Even if ICANN and the SO contract to say "All dealings between
ICANN and the SO shall be governed by the law of California" isn't there
still the possibility of conflict between ICANN's requirements regarding
the SO and the local forum's laws on such organizations?
Can someone clearly articulate the advantage for the SOs to be separately
incorporated, and if so, what advantage there is to the SO not being a
California NPPBC?
p.s. My field is tradmark and copyright, not corporate law. I am asking so
that I can learn, not because I have a position on this, other than a
general belief that, there should be less complexity, not more.
>
>
>At 10:50 AM 1/14/99 -0500, you wrote:
>>Gordon Cook says that Esther Dyson said to him off the record (double
>>hearsay with a twist):
>>
>> "But you have got to understand that half our board is not
>>>American and they think the US federal open meetings law is something they
>>>should not have to subject themselves to."
>>
>>Forget for the sake of the following whether or not this was in fact said.
>>Treat it as a hypothetical situation where the newly drafted ICANN by-laws
>>are getting a reality test:
>>
>>
>>What does California Non-Profit Public Benefit Corporation law say on this
>>point?
>>
>>Does "US federal open meetings law" preempt Cal NPPBC law on the relevant
>>point?
>>
>>OK, what is the relevant law?
>>
>>Note to SO by-law drafters: whether or not the ICANN by-laws are ambiguous
>>on this point, there is still time to make sure the SO by-laws are not
>>ambiguous on open meetings.
>>
>>p.s. I have heard that some folk would like the DNSO to be incorporated in
>>Europe. Without addressing the positives of that suggestion, one negative
>>that occurs to me is that it might make for a conflict of laws mess when
>>ICANN and DNSO make a contract, take a joint action, etc. Make up some
>>fact patterns and try them out.
>>
>>
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