[apnic-talk] Re:[JPNIC ip-wg 4974] Re: comments on legal documents
Obata-san,
APNIC's legal counsel responded to your questions last night. I've
inserted their responses in-line into your mail to keep the context.
>>>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.
According to Freehills:
"Under Australian law, there is a general obligation to issue paper share
certificiates. There are limited circumstances where companies can apply
for exemption from compliance, however this involves a number of
administrative steps and even then there is a discretion on the part of the
regulator."
>If there will be only one share to be issued, perhaps nobody else than
>the person holding it will care of the above issue.
According to Freehills:
"As you commented in your response to Mr. Obata, if there will only be one
share then there is no real significant problem"
>>>c) It seems better that an international arbitration organization is
>>>assigned as a default in case where the disputants cannot agree on anything
>>>else.
According to Freehills:
There are international arbitrations and international aribitration rules,
so if you wish this Article can be amended:
However, please note:
- if APNIC Pty Ltd. is to be based in Brisbane, it would most likely be
more convenient and cost effective that the arbitration was held in
Australia. Australia does have a comparatively good system of arbitration.
Furthermore, there aer certain Australian Arbitration bodies which
administer arbitrations under UNCITRAL Rules (international arbitration
rules).
>>>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.
According to Freehills:
"We agree with your response to Mr. Obata. Furthermore, the wording of
clause 9 specifically states that it is an obligation to comply with
"common Internet practices ... including (but not limited to)" the stated
RFCs. Therefore, if other RFCs can be proved to be within common Internet
practices, then they will also form part of those obligations."
>>>c) I am not sure whether reference to an FTP address in contracts have any
>>>legal status.
According to Freehills:
"Under Australian contract law, for references to external documents to be
effective the reference must be clear. That is, if FTP is common knowledge
in the industry and specifically to the companies who will become APNIC
members, to the extent that they can clearly identify the relevant FTP then
that should be sufficient."
(additional responses in subsequent mail)
Regards,
-drc
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