RE: [ga] serious participation in ICANN processes
See Karl's answer below;
> From: 'Kent Crispin' [mailto:email@example.com]
> Sent: Tuesday, April 03, 2001 3:17 PM
> On Tue, Apr 03, 2001 at 04:23:43PM -0400, Sotiropoulos wrote:
> > Kent, I've copied a message I had prepared in response to
> this same argument
> > of yours on the WG-Review on Jan. 31st
> for the benefit
> > of all on the GA List. It went like this:
> > "Ok Kent, I've read it a few times over and also gone to the CNPBCL
> > Code.
> Since, however, the @Large is able to vote in Directors of the Board,
> does it not follow that such members are actually acting according to
> the CNPBCL definition of "members" (i.e. "5056. (a)
> "Member" means any
> person who, pursuant to a specific provision of a
> corporation's articles
> or bylaws, has the right to vote for the election of a director or
> directors...) ??? I'd appreciate a response."
> No, it doesn't mean that.
> To reiterate: 1) Contrary to the statement that started this thread, a
> CNPBCL is not required to have members; 2) The ICANN bylaws
> make it very
> clear that the "Members" defined in the bylaws do not qualify
> as members
> under the CNPBCL code. Karl Auerbach has a mischievous interpretation
> of those laws, which you have picked up and will defend to the death,
> but the people who crafted those bylaws knew what they were doing.
> I have been told that Karl bases his creative reading on a fundamental
> misunderstanding (deliberate or not) of the legal view of
> whose benefit
> the bylaws are written for -- the bylaws are written for the
> benefit of
> the corporation; they are not written for the benefit of outside
> parties. If the corporation writes bylaws that state that
> "we are going
> to allow people to help us select directors, but that they
> are not to be
> considered members as defined in the CNPBL", then that's how
> things are.
> So, bottom line, ICANN does not have members (as defined by the
> CNPBCL), and it is under no legal obligation to have them. There
> really is no question about this.
Yes there is ... and I'd rather take the word of a member of the California
State BAR over yours. I note that you have made no IANAL disclaimers, are
you pretending to be a lawyer?
Thanks to Karl Auerbach for the following (posted with permission);
> -----Original Message-----
> From: Karl Auerbach [mailto:firstname.lastname@example.org]
> Sent: Tuesday, April 03, 2001 1:26 PM
> The person who posted gave only part of the story and as such
> comes to an
> incomplete conclusion.
> Sure the California statutes do allow non-membership corporations.
> But membership may arise from either a positive explicit
> declaration in
> the Corporation's organic documents (Articles of Incorporation or the
> By-Laws) *OR* by the indirect consequences of procedures written into
> those same documents.
> And one of those procedures through which a corporation comes to have
> members is by having elections for directors pursuant to
> provision in the
> Articles or Bylaws. (Section 5056 of the California
> Corporations Code.)
> 5056. (a) "Member" means any person who, pursuant to a specific
> provision of a corporation's articles or bylaws, has the
> right to vote for the election of a director or directors...
> "Member" also means any person who is designated in the articles
> or bylaws as a member and, pursuant to a specific provision of
> a corporation's articles or bylaws, has the right to vote on
> changes to the articles or bylaws.
> And under that section those who get the power to vote thereby become
> (One can argue about the effectiveness of ICANN's use of an
> resolution to try to avoid the "pursuant to a specific provision"
> part of the statute.)
> A corporation can't override the statute and say that that
> that implict declaration of membership (i.e. the election of directors)
> doesn't cause membership to arise.
> See: http://www.cavebear.com/icann-board/platform.htm#full-members
> The provision that Crispin quoted is merely a catchall that
> serves to say that if nothing in the Articles or Bylaws either
> explicitly or implicitly causes a membership to arise, then
> the corporation is still legal.
> There is no iconsistency between section 5310 and 5056. The
> presence of a section 5056 election means that a corporation
> has not effectively provided "in its articles that it shall
> have no members."
> A draftsman can create a set of corporate documents, such as
> ICANN's, in which there is both a declaration of no-membership
> and provisions that do create membership. But that is just
> slopply lawyering.
> Notice that the first sentence of section 5310(a) merely allows a
> corporations to *state* in its articles or bylaws that it
> shall have no members. But such a provision is, in and of itself,
> nothing more than a bald statement. The second sentence of 5310(a)
> is the real meat - according to that sentence it is only the
> *absence* of any membership-causing provision, such as 5056, anywhere
> in the articles or bylaws that causes there to be no membership.
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