NEW Open for comments : FINAL DRAFT EURALO Articles of Association 2019
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|Olivier Crepin Leblond|
|Jean Jacques Subrenat|
|Matthias Markus Hudobnik|
- Next EURALO Bylaws Taskforce Meeting: 31 January 2019
- Last EURALO Bylaws Taskforce Meeting: 11 September 2018
Past EURALO Bylaws Taskforce Meetings
- First task will be to map out the differences between the bylaws are drafted and how EURALO actually works.
- The Task Force will revert back to EURALO ALSes with their results
- In order not to reinvent the wheel, many information sources will need to be accessible on the task force's page.
- Define what the EURALO wants to do and check if, to do so, there is or is not a need that parts of the Bylaws should be revised.
- Come back and consult with our members about such selected or proposed parts and reasons.
- Members should review these proposals and reasons and decide on the scope for further reviews
DOCUMENTS DRAFTED BY TASK FORCE MEMBERS
DRAFT ARTICLES OF ASSOCIATION - shared by Florian Hule on Mon 6/4/2018
FIRST DRAFT - EURALO By-Laws - Date 3/7/2017
The Statutory (Governing) Bodies. Duties, responsibilities and other, document drafted by Mikhail Medrish - DATE 5/26/2016
Table summary with Quorum discussion to be discussed in Helsinki. by Olivier Crepin-Leblond - DATE: 6/22/2016
The table is currently at: https://docs.google.com/spreadsheets/d/1NNdRi0T-ol_ytvxhGYB6aTAe3QqeTnxd0hCPG7fKsQw/edit?usp=sharing
Proposal to review the By- Laws in accordance with Swiss Law- Outline By Florian Hule (email dated Tue 1/17/2017 )
The main structure of the articles of association in Switzerland usually is the following:
0) Founding The Association starts to exist, from the moment the members agree upon its written articles and elect the managing board.
1) Name and Seat of the Association Question: Do we have an address for the Association?
2) Aim and Purpose of the Association Since EURALO is not commercially active, there has to be a corresponding section in the articles.
3) Means If EURALO means to raise or manage any form of capital we have to list how this is going to be done.
4) Membership 4.1. Who can be a Member and how to become one 4.2. Membership rights Note: The swiss ZGB differentiates between active and passive members (both of these categories are allowed to vote, but passive members only support the association either financially or ideally). 4.3. End of Membership
5) Organs of the Association Please note that only membership assembly and the managing board are obligatory, all other organs are optional, so we are rather free in designing them.
5.1. The Membership assembly (Vereinsversammlung) The most important of the organs, made up of all members. One fifth of the members can call for a meeting and usually decisions are made by the bare majority.
Everyone of these meetings needs an agenda, about which the members have to be informed otherwise they are not allowed to vote (except the articles state otherwise).
5.2. Managing Board (Vorstand)
6. Dissolution of the Association
There is a number of options, you should be aware of:
1) A liability of members is only optional and not the norm. 2) All Associations can be registered in the Swiss Commercial-registry. This is necessary if the Association has to prove to another company that it exists, if it exceds certain financial thresholds or is going to be commercially active. If the association registers, they have to report a full list of members, the complete statues and all changes of membership. 3) There is no mention of an internal arbitration panel in the code, since we deal with a large number of international members, there probably should be a provision in the articles. Otherwise we risk expansive litigation in a country, not exactly known for its cheap court-system. Also please keep in mind, that the EU System of Court-Competency is not automatically applicable. 4) There may be the problem of rights-transfer, the rights EURALO currently possess have to be transferred upon the new association. I am currently researching how this can be done in a simple and inexpensive manner.
Maybe we can use this bare structure as an agenda for further discussions.
Kind regards, Florian Hule
- EURALO Articles of Association Adopted in Lisbon, on the 27th of April 2007, changed on 24th of May 2011.(corrected version April 2015)
- EURALO Articles of Association. Note : The version with annotations shows the REDLINE difference between the 2007 version and the 2011 version of the bylaws, annotations by Wolf Ludwig. See VERSION WITH ANNOTATIONS HERE PDF: HERE
Unter Annette's point IV (see her today's message to add IV, V and VI) I would like to add and recall Roberto Gaetano's KEY point from last summer on this matter (quote): "When this issue was raised a couple of years ago, my question was: 'WHAT exactly do we need to change and WHY?' I still believe that, before including this item in the agenda for Dublin (or even for other meetings before or after Dublin), we need to have a meaningful answer to this question." (see Roberto's posting on the EURALO list from 29 July 2015).
2016-03-04 12:49 GMT+02:00 Mikhail Medrish via Euralo-tf-bylaws <email@example.com>:
I would like to start our discussion.
In order to do it I am sending you the results of my brief analysis of the statute of our organization in order to identify contradictions with other documents, as well as with real life.
Beyond that I put together and send you for reference the documents regulating the lives of other regional organizations.
I'm not ready to propose concrete solutions, but I would like to share some important, in my opinion, the interim conclusions.
1. The basic directions of activities of our organization are defined in a Memorandum of Understanding with ICANN. Directions are relevant, and the text of the memorandum is not needed to revise.
2. The text of our Articles of Association (AoA) comes into substantial contradictions with real life and external documents. The main contradictions are:
- our organization is not EURALO de jure. Supplementary Memorandum of Understanding with ICANN, prescribed in the AoA, has not yet been signed. Thus, a definite in the Charter the "intent" to be EURALO has not yet been legitimized. This, of course, a formality, but the problem is unpleasant.
- management processes in our organization are different from how it is written on paper;
- the existence of created in 2012 individual users association has not yet been legitimized
3. We still do not have a document that defines the rules and procedures, though the AoA defines the need to have such document.
4. The AoA looks like the Bylaw of a legal entity, But our organization is in its essence not a legal entity. New members of the association appear on the basis of procedures and decisions of ALAC which is also not a legal entity
I would like to draw your attention to the fact that in all other regional organizations, the main document is called "Operating Principles". Moreover, our colleagues from the region of North America have recently adopted a new version of such document.
I am very sorry that will not see you in Marrakech.
Wish you all success and good luck.
Euralo-tf-bylaws mailing list
email by Oksana Fri 3/18/2016 4:55 PM
Sorry for being late to join your great discussion.
Thanks a lot to Mikhail for very detailed analyses of contradictions between current EURALO bylaws and "real life" and to Plamena for her irresistible argumentation why we can't ignore this problem anymore.
I just would like to add my five cents:
- first of all, can we include in Mikhail's list of "recommended sources" the report of Tijani Benjamen on 2014 BMSPC report (regarding the ICANN Board Seat 15 election) (attached);
- second, what do you think about influence of the whole discussion of ICANN transparency and accountability in the process of IANA stewardship transition process on transparency and accountability in EURALO? Can we use some recommendations in our work?
Thank you very much in advance,
Email by Plamena Fri 3/18/2016 4:55 PM
Thanks for the initial bylaws' review which I think is thorough. If I may join the discussion I would like to point the following:
The basic problem with the bylaws (captured excellently in the review) is its difference from the “real' life” procedures. One does not need any legal background to see that this is a problem.
The fundamental purpose of (any kind) of documents in any organisations is to provide clarity on the procedures (also for the new members and not only for those who operate the organization in fact). I must admit that I am still very unclear on many of the ways/procedures which run EURALO (eventhough our University has join it since 2013).
The gap between reality and bylaws is a problem that could not be ignored.
From a legal point of view: Currently EURALO has bylaws (written under german law on legal entities) establishing (showing intention to establish) organisation of different type (international/and not a legal entity as far as I understand) and (in addition) providing procedures that often differ from the actual ones.
Though I have now understand the process which have led to bylaws' adoption (thanks to Wolf detailed emails) - this does not change the fact that the bylaws does not correspond to the actual situation.
It may be a good idea just to have written the actual operating principles of EURALO in order to avoid all of the misunderstanding that the current bylaws cause.
2016-03-21 21:14 GMT+03:00 Olivier MJ Crepin-Leblond <firstname.lastname@example.org>:
thanks for your follow-up on this. Please find below my further comments/questions:
On 18/03/2016 22:49, Mikhail Medrish via Euralo-tf-bylaws wrote:
Dear Plamena, dear all,
I would like to support the Plamena’s proposals.
I also think that the best solution is to write a new document – EURALO's Operating Principles (OP) – from scratch. All other regional organizations have OP as a Bylaw. We can use their experience to accelerate the writing of our OP. There is no need to follow the laws of any country. We do not intend to register this document as a Bylaw of EURALO as a legal entity.
I think that this would be welcome. But when drafting these, I implore you to be careful to not make things too narrow. When Alan Greenberg led a Team in At-Large to re-write the ALAC Rules of Procedure, he was very careful to make sure that in some cases, there would be the ability for the Chair, or a Committee to have a wide array of options in taking decisions. If you try to dictate too many options and cases, you'll miss out on a particular situation and could end up causing harm in not allowing the Chair or a Committee to take a decision in reasonable time.
Besides OP, we have to wright one more document - the Rules of Procedures (RoP). RoP is needed to ensure the transparency of the EURALO.
What is the difference between the Rules of Procedure and the Operating Principles?
Would these Rules of Procedure need to be passed as Bylaws? How would they be formalised?
If you agree with such approach, I suggest the following:
- to inform EURALO’s members about our findings
- to offer the idea of writing a new OP & RoP to replace the existing Bylaw
*replace* --- and this is where I think there might be a problem because as Wolf has mentioned in the past, it has taken a very long time to agree on the current bylaws. So if you want to replace them, then you are likely to face a long argument with some ALSes and perhaps you'll never manage to replace the existing Bylaws due to lack of support.
- in case of approval of the idea to ask stuff to write a drafts on the basis of documents of other regional organizations
Please clarify: "ask stuff" -- do you mean, asking staff to write drafts? I'm afraid to have to tell you that we do not have staff to write these. ICANN At-Large Staff do not have the competence nor the time to write bylaws - plus it might be in contravention of the fact that ICANN staff might not be allowed to write bylaws of ICANN's SO, AC, and RALOs in particular. As EURALO is a counterpart to signing MoU with ICANN, all of the text is going to need to come from volunteers.
- to finalize drafts by our working group
- to adopt new documents on the General Assembly.
In order to accelerate the process, we can use the mechanism of absentee voting.
Please be so kind to explain this. Until new operating procedures/bylaws/rules of procedure are agreed by vote, any vote is directed by the current procedures and policies and I have not seen a mention of "absentee voting".
Some contradictions between bylaw and real lives of the EURALO pointed out by Mikhail Medrish
(email Thu 1/14/2016 5:14 AM)
A. Euro Individuals Association established in 2012 still not institutionalized in the EURALO Bylaw.
- The Statute of Euro Individuals Association says that «By the creation of its Association, individuals from all over Europe can gather and assume a voting right at EURALO’s annual General Assembly (GA), as stipulated in EURALO’s amended Bylaws from May 2011 in Belgrade.» Although the question of changing EURALO Bylaw was discussed in Belgrade no changes were made.
- The paragraph 3 of the Statutes Euro Individuals Association says that «Financial resources In order to fulfill its role in the frame of EURALO, the Euro Individuals Association can count on resources and capacities of EURALO such as its Secretariat and does not need own financial resources and administrative facilities.» There are no corresponding obligations in the EURALO’s Bylaw. This raises the problem of the resources’ use.
B. Governing bodies, EURALO officers and their functions do not correspond to the real life
- In reality the General Assembly of EURALO elects the Chairman of the EURALO. The Articles of Association does not provide for such position
- The Articles of Association says that in its Board has a Chairman and a Deputy Chairman. In reality there are no such officers and their functions are performed by the EURALO’s Chair and the Secretary. In particular, according to the Articles of Association the Chair of the Board is EURALO’s representative everywhere .
- The Statute does not provide for a Secretary as one of the EURALO officers.
- The Statute provides for a position of a Treasurer that was never elected in practice because of absence of necessity.
- The Statute provides for Advisory Council, which has never existed.
C. Procedures set forth in the Articles of Association do not always
correspond to the practice (paragraphs 9.3, 9.7). There is still no Rules of Procedure which should be adopted by the Board (paragraph 9.1. of the Articles of Association).
D. The section 7 of the Articles of Association defines the
possibility of periodical and extraordinary membership fees the amount of which determines the General Assembly. These regulaions are still not put into action. I know from my experience that even the existence of such possibilities in Bylaw can be a deterrent for potential ALSes on joining EURALO.