Business Constituency (BC) comment on draft restated Articles of Incorporation

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

The Business Constituency (BC) appreciates the opportunity to provide comments 
regarding draft restated Articles of Incorporation for ICANN.  (see 
https://www.icann.org/public-comments/draft-restated-articles-incorporation-2016-05-27-en
 )

The BC believes that the restated Articles faithfully reflect changes required 
to implement the approved CCWG and CWG proposals, and we support the restated 
Articles with one qualification:

In previous BC comments on transition documents, we stated our assumption that 
ICANN would remain a California non-profit corporation, since that form of 
legal organization supports the legally enforceable powers of the Empowered 
Community as sole Designator.

The original and restated Articles of Incorporation include this in Section 2:
2. This Corporation is a nonprofit public benefit corporation and is not 
organized for the private gain of any person. It is organized under the 
California Nonprofit Public Benefit Corporation Law for charitable and public 
purposes.

BC support for these Articles of Incorporation relies upon ICANN Legal 
Department’s written statement that “organized under” has the same meaning as 
“incorporated under”.    On 26-Jun-2016, ICANN Legal Counsel issued this 
statement:

There is no legal difference between the term “organized” or “incorporated” in 
this instance.  They both would demonstrate that ICANN is created pursuant to 
California law, and using either term, ICANN is bound to file its Articles of 
Incorporation in California and maintain an address and an agent for service of 
process in California.  Though they mean the same thing, ICANN has – since 1998 
– used the term “organized” within its Articles.  The term “organized” is the 
more appropriate term to use for organizations of ICANN’s type, and is even the 
recommended term provided by the California Secretary of State in model forms 
for Nonprofit Public Benefit organizations like ICANN (See form 
ARTS-PB-501(c)(3): "It is organized under the Nonprofit Public Benefit 
Corporation Law”.  Available at 
Bpd.cdn.sos.ca.gov/corp/pdf/articles/arts-pb.pdf ).  For those unfamiliar, the 
California Secretary of State is responsible for the filings and maintaining 
business records for California organizations.  Adherence to the model usage of 
the language is recommended, and there does not seem to be a compelling 
justification to change from the historical and accepted usage.

The BC requests that ICANN add a footnote to the new Articles of Incorporation 
to summarize the above explanation.   The BC suggests this text for the 
footnote to section 2:

The term “organized” has the same meaning as “incorporated” in this context.  
Both terms demonstrate that ICANN is created pursuant to California law, and 
that ICANN is bound to file its Articles of Incorporation in California and 
maintain an address and an agent for service of process in California.

--
This comment was drafted by Steve DelBianco and was approved in accord with the 
BC Charter.

Steve DelBianco
Vice chair for policy coordination
ICANN Business Constituency

Attachment: BC comment on draft restated ICANN Articles of Incorporation.pdf
Description: BC comment on draft restated ICANN Articles of Incorporation.pdf