[apnic-talk] Re: [JPNIC intl-wg 219] comments on legal documents
Obata-san,
Thank you _very_ much for the comments. Some of them will have to be
answered by the lawyers. I'll take a shot at a few of them in the
meantime. Note that my answers are based merely on my understanding of the
intent and may not be "legally correct" interpretations.
Regards,
-drc
>a) It is usual among Japanese organizations that a privately owned company
>does not issue shares due to difficulty of storing such papers. In my
>experience, it is usual that both a company and all of its shareholders
>agree in writing that they do not issue shares in paper. I think it will
>be beneficial for both the share holders and APNIC if we can adopt such
>procedures.
It is likely this will be dependent upon Australian laws and will ask
Freehills, Hollingdale and Page (our lawyers). I agree that having a piece
of paper around is annoying and it would be nice not to carry it around.
>b) How is a case defined where a member organization such as a public
>company (such as KDD) changes its registration due to merge or any such
>transaction? Will it be considered as transfer of shares or just change in
>the database?
Clarification: shareholders != members. APNIC has no intention of issuing
more than one share, that one share being held in trust by the director
general for the Executive Council (see the Trust Statement).
>c) It seems better that an international arbitration organization is
>assigned as a default in case where the disputants cannot agree on anything
>else.
Again, a question that will need to go to the lawyers, but I don't see this
is a problem (albeit, it assumes there is such a thing as an "International
arbitration organization")
>d) What is your idea of the initial people defined in this article, such
>as, COB, Directors, President, members, officers and subscribers. May I
>assume that they will be Chairmen of Executive Council, EC, Director
>General, APNIC current members and current employees of APNIC,
>respectively? I do not have a good idea of who the subscribers will be but
>it seems to me that it may constitute of Directors, Director General and
>possibly members of APNIC.
APNIC Pty Ltd Directors == Director General (+ right now, due to the legal
requirement for there to be a Director living in Australia one other non
voting director. This second directorship will be abolished when the DG
(regardless of nationality) is resident in Australia).
President, Officers == Directors
Subscribers == (people who hold shares in APNIC Pty Ltd) one of the
Directors (me, actually)
Members == APNIC Members
>e) I could not find "section 125 of the Corporations Law." I thought I
>could find it in the By-Laws.
That is a reference to the Corporations Law of Australia. You'll find it
at your nearest Law Library (the one that contains Australian law books. :-))
>**Membership Agreement**
>a) How is a confederation member defined? Do you plan to define it later
>and amend the agreement?
Confederation status is an attribute of membership that is agreed upon
separately from membership itself and requires a separate agreement.
>b) It may not be a good idea to refer to RFCs in the main part of the
>Agreement since it is more difficult to be changed. Although adoption of
>such RFCs are not limited to the list in the Agreement, it will give enough
>implication that may cause misinterpretation in the future when new RFCs
>are issued.
True, however there are no legal requirements to change the membership
agreement (unlike changing By-Laws which needs a 2/3 majority of the
members or changing the articles which needs to be filed with the AU
gov't). Further, if we do not explicitly mention which RFCs, then it
becomes much more difficult to define what exactly is being agreed to.
>c) I am not sure whether reference to an FTP address in contracts have any
>legal status.
Will run it by the lawyers, but I suspect it has the same legal status as
(say) telephone numbers.
>d) Same comment for arbitration as above.
>
>e) Will there be any discount of annual membership fee for those
>organizations joining later than 1 January of each year? I expect that it
>is charged per month since the membership agreement commences on each first
>day of a month.
No, no discount. Billing is monthly, with the start of billing occuring
the first day of the next month after the organization joins. The idea is
that if an organization starts its membership on May 15, they would enter
the billing cycle on June 1 (thereby getting 15 days of free service).
Primary reason for this is that Kyoko feels the current daily billing cycle
too difficult to manage.
>f) It may be appropriate that the Schedule defines the number of shares
>each membership shall acquire.
As mentioned, shares won't be issued.
>g) I expected that the subscribers of this agreement are the members (share
>holders) of APNIC but I may be wrong.
Right, you're mistaken. Yes, it is confusing.
>h) It may be better that attendance to member meetings is defined to be an
>obligation of a member.
Hmmm. Would agree, except for the cost of attending APNIC meetings... what
do others think?
>**Memorandam**
>a) Same comment as f) and g) of the Membership Agreement.
Same response (:-)).
>**Declaration of Trust**
>a)Why are the other documents based on an organization structure
>consituting of members, who hold the power, with Directors providing
>operation while this document defines that members of the Executive Council
>(the Beneficiaries) assignes a Trustee, who does not necessary belong to
>the APNIC organization, for holding the only share which is defined to be
>held by Members of APNIC in other documents?
The structure of APNIC (both the current Seychelles company and the
Australian company) is:
- A minimalistic legal shell (the minimum necessary to create a legal
entity according to the laws of the country in which it is incorporated)
which creates a special committee called "APNIC" and immediately delegates
all legal powers to that special committee
- A special committee called "APNIC" which consists of the Membership which
elects an Executive Council which hires a Director General.
- The Director General which holds the single share of the minimalistic
legal shell in trust for the EC which is the representative body of the
Membership.
(this last bit was one wart of the Seychelles company as there was no legal
"trust" binding between the share holder and the EC, in other words, the
share holder (me) could do anything he/she wants with the company. This is
obviously broken (after all, we all know how evil I am :-)), so the "trust
statement" legally requires the share holder to abide by the wishes of the
EC).
Does that clarify the relationships?
>**By Laws**
>a) There are sevaral misalignments between this document and the Articles
>for definition of member meetings and its quorum, resolutions and etc.
Can you be specific?
>b) Ten days notice is too short for member meetings. I prefer a change to
>1 month notice.
OK.
>c) The section defining election of the first executive council members can
>be deleted now.
Actually, it can't. APNIC Pty Ltd is a shell organization right now. It
has no members as all current members have contractual agreements with
APNIC Ltd (Seychelles). Without having members, it can't have an EC (since
the EC comes from the membership). This section is in the by-laws in order
to bootstrap the EC by simply transfering over the EC from the Seychelles.
>d) The comments for articles, membership agreements, memorandum and
>declaration of trust are the same for this document whenever applicable.
Hmm. Could you be more specific?
Thanks,
-drc
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