[apnic-talk] Re: comments on legal documents
Maruyama-san,
Thanks _very_ much for the comments.
>This is, I feel, a crucial point in these documents. A legal advisor
>of JPNIC is now studying these documents.
It may be best then to wait until the analysis is complete, however I will
hazard a guess or two (and, of course, forward your comments/questions to
our lawyers for their official comment). Previous disclaimers apply.
>"Members of APNIC Pty Ltd" are same as shareholders of APNIC Pty Ltd.
>They elect/remove "Directors of APNIC Pty Ltd".
>"Meeting of Directors of APNIC Pty Ltd" is empowered to create/remove
>"APNIC" as a special committee of "APNIC Pty Ltd".
>"APNIC" has AGM(Annual General Meeting)" as its organ which consists
>of "APNIC Members". AGM elects Executive Council members.
>And EC members elect DG(Director General).
Yes, this is what I tried to describe to Obata-san
>David wrote that APNIC Pty Ltd will issue only one share. So, the
>above description automatically implies that the structure of new
>APNIC is
> AUTOCRACY,
>not democracy by APNIC members.
Technically, I suppose it could be argued (although I'd disagree). One
alternative structure would be to issue shares to all members which means a
large amount of additional complications (e.g., logistics of actually
issuing shares, how to handle the shares in cases of company sales,
mergers, and accquisitions, how to handle replacement of shares, etc). All
seemed a bit pointless to my advisors when the original incorporation was
done (and I'll note that despite posting the M&A of the Seychelles company,
no one actually made any comments on this issue).
Instead, the proposal is that the single share be held in trust for the EC
which represents the members. See the Trust Statement for the specific
details. Since the EC is democratically elected by the membership and the
share holder, by the requirements of the Trust Statement, acts on behalf of
and for the EC, I would contend that the structure is NOT an autocracy and
would be interested in seeing your counter-arguments.
Note however that your analysis is quite true for the existing APNIC
structure. It is indeed an autocracy, and this is THE most critical wart
that needs to be fixed in APNIC's structure as it relies on the goodwill
and honesty of the single share holder to insure APNIC acts on behalf of
its members. In retrospect, it was a mistake to accept this structure and
I apologize to the membership.
>Here, I would like to ask all the APNIC-talk subscribers:
> Do we want AUTOCRACY for APNIC?
>Of course, I don't want it. I prefer democracy for APNIC.
As would, I suspect, everyone. Thus my attempts to insure the new
structure is more aligned with this requirement.
>This autocratic structure is my main concern, but another concern
>for me is whether or not "APNIC Pty Ltd" is non-profit organization
>under Australian law.
As I believe I explained in the meeting in Manila when you brought this up,
it is my understanding that the concept of "non-profit" applies only to
charitable organizations in Australia and APNIC has not applied for
charitable status, thus I believe it safe to say that APNIC is _not_ a
non-profit organization under Australian law.
It is, however, tax exempt for all member derived income (a little over 98%
of our income) by virtue of the Australian interpretation of "the doctrine
of mutuality".
>The document states that it is non-profit, but
>this may never be the answer.
On the contrary, I would contend that given APNIC's Articles of Association
EXPLICITLY define it to be non-profit and that it may never "declare or pay
dividends" (Articles, clause 15.1), whether or not the Australian
government treats APNIC as a "non-profit" is essentially irrelevant. Any
attempt for APNIC to do non-profit things would be in violation of its
charter and "bad things" would happen.
>What is the name of a law "Pty. Ltd." grounded on?
the Corporations Law.
>In Japan, probono (legal term for "non-profit") organizations, like
>JPNIC, are grounded on the Civil code, whereas most commercial
>companies are grounded on the commercial law, and I believe there is
>similar legal structure in Australia.
No idea.
>I know the current documents are rather direct imitation of the legal
>documents for the company in the Seychelles, but why do we need to
>imitate them?
Primarily convenience and the speed in which the everything can be
finalized. Also, with the exception of the wart you have noted, I do
subscribe to the "if it ain't broke, don't fix it" school of thought.
However, the membership is free to _completely_ redraw any and/or all
aspects of APNIC in any way they choose. As the sole voting director or
APNIC Pty Ltd, I hereby (hopefully unnecessarily ) state publicly and for
the record that I will (of course) accede to the wishes of the majority of
the membership in however they would like to draw up the legal documents.
That is, after all, the whole reason I spent a considerable amount of time
hacking the output of MS Word ("Save As HTML" doesn't) into readable HTML
documents and placed them on the APNIC web server.
Regards,
-drc
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