[Chapter-delegates] Revised Chapter Agreement

Jahangir Hossain jrjahangir at gmail.com
Thu Aug 31 02:07:31 PDT 2017 

I also agree with Richard on arbitration .

Again, The main challenges which already raised from chapters to match US
law with respect to local law and regulation to become legal organization .

if ISOC  agreed to leave out the choice of law clause then it would be more
meaningful for most of the chapters who are trying to become legal
organization in their respective country .




*Regards / *

*Jahangir​ HossainISOC Bangladesh Dhaka Chapter​*


On Thu, Aug 31, 2017 at 2:29 PM, Veni Markovski <veni at veni.com> wrote:

> Agree with Richard on arbitration issues (he knows a lot there).
> As a young lawyer, I did a course with the Rome-based International
> Development Law Institute (not sure about the exact name), and one
> conclusion from that time is to try to avoid such procedures.
> Alternative dispute resolution may be a good way for ISOC, as it doesn't
> involve expensive experts, arbiters or courts.
>
> We are also having discussions in Bulgaria, although we changed the
> by-laws (I'll send a different note about it, once I'm back online; now on
> vacation), as our Board is not very sure in some of these changes being
> relevant to the situation in the country.
>
>
>
> On Thu, Aug 31, 2017 at 06:34 Richard Hill <rhill at hill-a.ch> wrote:
>
>> Dear Alessandro,
>>
>>
>>
>> I will comment only on your comments on the arbitration clause.  My
>> comments are based on my knowledge of international arbitration.
>>
>>
>>
>> Specifying three arbitrators would greatly increase the cost of an
>> arbitration. Given that any disputes between ISOC and a Chapter are not
>> likely to involve any significant amounts of money, it seems to me that
>> specifying three arbitrators is unnecessary and even counter-productive.
>>
>>
>>
>> If you don’t specify the language of arbitration up front, then the
>> arbitrator has to decide the language. In order to that, she or he will ask
>> the parties to plead the matter.  This will significantly increase the cost
>> of the arbitration.  Since interactions between ISOC and the Chapters take
>> place largely in English, it seems to me appropriate that the language of
>> arbitration be English.  I don’t see how the Chapter would be disadvantaged
>> by that. On the contrary, specifying some other language might disadvantage
>> the Chapter because it might wind up having to pay to translate ISOC
>> documents from English into the language of the arbitration.
>>
>>
>>
>> The original proposal from ISOC specified US law (actually the law of a
>> specific US state, Virginia if my memory is correct).  I made the point
>> that it would be difficult for some chapters to agree to be bound by a law
>> of which they have no knowledge, and in particular by US law which is, in
>> some respects, very different from the laws of other countries and whose
>> provisions are not always easy to find.
>>
>>
>>
>> So ISOC agreed to leave out the choice of law clause.
>>
>>
>>
>> I suppose that your reference to art. 1341 of the Codice Civile is to the
>> bit where it refers to “clausole compromissorie o deroghe” (Italian is my
>> mother tongue).  But I doubt that the implication is that an arbitration
>> clause is not valid unless the law is chosen.  If the law is not chosen,
>> then the arbitrator will have to decide what law to apply. I would be
>> surprised if that were not allowed for an international arbitration in
>> which one party is Italian, but I’m not an Italian lawyer, so I’m ready to
>> stand corrected. It seems to me that that art. 1341 of the Codice Civile
>> specifies that an arbitration clause is not valid unless it is in writing,
>> which is a commonly required in national arbitration laws and is specified
>> in the New York Convention on the Recognition and Enforcement of Foreign
>> Arbitral Awards, the instrument that governs international arbitrations.
>>
>>
>>
>> The absence of the choice of law does have a significant disadvantage:
>> since the arbitrator has to decide which law to apply, she or he has to ask
>> the parties to plead the matter, and that will significantly increase the
>> cost of the arbitration.  However, it seems to me to be better to accept
>> that hypothetical cost (hypothetical because it will only be incurred if a
>> dispute goes to arbitration, which appears very unlikely to me), rather
>> than to force chapters to think about whether they could accept to be bound
>> by US law (in some countries, the chapter officers might have a fiduciary
>> duty to get a legal opinion regarding that matter). (I’m assuming that ISOC
>> does not want to be bound by the law of the country of the Chapter; if ISOC
>> is OK with that, then of course the best solution would be to specify the
>> law of the country of the chapter.)
>>
>>
>>
>> Best,
>>
>> Richard
>>
>>
>>
>> *From:* Chapter-delegates [mailto:chapter-delegates-
>> bounces at elists.isoc.org] *On Behalf Of *Alessandro Berni
>> *Sent:* Wednesday, August 30, 2017 22:41
>> *To:* Joyce Dogniez
>>
>>
>> *Cc:* chapter-delegates at elists.isoc.org
>> *Subject:* Re: [Chapter-delegates] Revised Chapter Agreement
>>
>>
>>
>> Dear Joyce,
>>
>> The board of Societa’ Internet – ISOC Chapter Italy discussed the draft
>> agreement and is providing the following feedback.
>>
>>
>>
>> Background
>>
>>
>>
>> Societa’ Internet was officially registered in year 2000. Article 2 of
>> our bylaws regulates the relations with the Internet Society, stating,
>> inter alia:
>>
>> ·        Societa’ Internet shares and observes the principles, mission
>> and goals of the Internet Society and promotes them in Italy.
>>
>> ·        Societa’ Internet purports to retain recognition as an Italian
>> chapter of the Internet Society. Any revocation or decay of recognition is
>> not in itself a reason for dissolving or modifying the social purposes of
>> Societa’ Internet.
>>
>> ·        Societa’ Internet collaborates with other sections of the
>> Internet Society in pursuit of common goals and in particular with the
>> European sections in the European integration process.
>>
>> ·        Societa’ Internet complies with the By-Laws, Regulations and
>> Directives of the Internet Society for the Chapter, when it is not in
>> conflict with binding laws and standards or with this Statute.
>>
>>
>>
>> Our impression is that some of the clauses in the proposed Charter make
>> sense in organisations where there is a significant power in the
>> leadership, significant money management, and a large number of members.
>>
>>
>>
>> This is not the case of our chapter, as in many others. In our
>> experience, it is important that those who serve in the board are
>> authoritative and introduced in the environments in which ISOC must carry
>> out its mission. The credibility of the chapter is the greater asset that
>> the chapter can have. Certainly, in our chapter, those running for election
>> do not do it for money. In our chapter, then, usually, the "prestige
>> increase" resulting from the election is in favour of the chapter, not of
>> the elected ones (in the sense that it is the chapter to acquire more
>> prestige from the election of a certain person, rather that the prestige
>> increase for the chosen person deriving from being chosen by the chapter).
>>
>>
>>
>> The number of members of the local chapter then does the rest. If limits
>> are put on the number of mandates, very few people of the present Board
>> would be eligible in next election; i.e. those that were not elected in
>> previous years. This would of course lead to a decay of the effectiveness
>> and activity of the chapter.
>>
>>
>>
>> Direct election is by itself a guarantee of the democracy in the chapter
>> and does not prevent young people of value from being candidates and being
>> elected. There are no limitations in our statute to who can vote or be
>> elected (apart from a 30-day window for new member, as explained later). In
>> our opinion, introducing limitations would make our chapter non-democratic.
>> Member must be free to elect who they think best and not be bound to elect
>> someone just because he or she has not been elected before.
>>
>>
>>
>> What we wish to avoid is to pass the message that chapters are branches
>> of a foreign-based business-like venture. ISOC was born for a purpose, and
>> we want to be equipped to fulfill that purpose in the most appropriate,
>> authoritative and credible manner.
>>
>>
>>
>> With regard to the proposed agreement, we share the many comments and
>> recommendations already presented by other chapters, and we provide a
>> summary of our point of view below.
>>
>>
>>
>> Comments - Paragraph 2. Governing documents.
>>
>>
>>
>> a. Incorporating the proposed changes is not straightforward and would
>> require changing our bylaws which in turn requires approval by the general
>> assembly. This is a lengthy process that cannot be resolved within the
>> timeframe being envisioned (acceptance of the new agreement by end of
>> year). Our current election term is set to 3 years and we think that there
>> is no necessity to ensure annual or bi-annual elections. We also have
>> doubts on the word “transparent”, which seems in contradiction with the
>> provisions of our bylaws, which calls for secret ballot; also the word
>> “open” could clash against the provisions of the current bylaws, whereas
>> members who join the association during the last 30 days prior to the
>> elections cannot vote in the general assembly;
>>
>>
>>
>> b. Local law does not require that the bylaws of a local association
>> should be approved by a foreign organization and it can negatively
>> influence the process of affiliation. Out
>>
>> Our bylaws already include a compliance clause with ISOC bylaws,
>> regulations and directives, when not in conflict with local laws and with
>> the bylaws in force.
>>
>>
>>
>> We propose to amend Paragraph 2.a to take in consideration the above
>> points.
>>
>>
>>
>> We propose editing Paragraph 2b. as follows:
>>
>> b. When requesting recognition as a chapter, the Chapter shall file a
>> copy of the Chapter’s Governance Documents to   the Internet Society for
>> consideration. The Chapter is recommended to submit any subsequent changes
>> to the Chapter’s Governance Documents to the Internet Society staff, and a
>> Chapter may request advice from the staff regarding proposed changes to its
>> Governance Documents.
>>
>>
>>
>> Comments - Paragraph 3 Chapter activities
>>
>>
>>
>> i. The requirement that members of a local Chapter must also be members
>> of the Internet Society limits their freedom of choice according to the
>> local law. Membership in the Internet Society should be voluntary,
>> otherwise it can be negatively accepted by the local judicial bodies. It
>> means that some member of the local association might not be members of the
>> Internet Society.
>>
>>
>>
>> ii., iii, iv: the 30 days term appears very restrictive in consideration
>> of the fact that all work is done by volunteers and that there is no  paid
>> staff that can ensure a pre-defined level of service; all out activities
>> are, by definition, based on voluntary best effort.
>>
>>
>>
>> We propose the following amendment to Paragraph 3.a.i
>>
>> i. Establish and maintain the Chapter with a minimum of 25 individual who
>> must be individual members of the Internet Society. The Chapter might have
>> members that are not individual members of the Internet Society.
>>
>>
>>
>> We propose to amend 3. ii., iii,  and iv to remove the explicit reference
>> to 30 days. A different, non-quantitative, formulation should be used.
>>
>>
>>
>> Comments – Paragraph 7 – Tax exempt status
>>
>>
>>
>> Although the principles are clear and agreed, we are concerned about
>> creating bureaucratic workload and/or costs (e.g. for audits). Again, this
>> consideration stems from the fact that all work is done by volunteers and
>> that there is no paid staff that can ensure a pre-defined level of service;
>> all out activities are, by definition, based on best effort. Please note
>> that our bylaws already foresees a Board of Auditors which reviews the
>> management documents, verifies the regular keeping of books and accounting
>> records, examines the balance sheet and the balance sheet, drawing up
>> special reports for the general assembly.
>>
>>
>>
>> Comments – Paragraph 11 – Dispute resolution
>>
>>
>>
>> In the currently proposed formulation, any dispute will be brought to the
>> arbitration tribunal of WIPO, Geneva, with a sole arbitrator. We strongly
>> recommend 3 arbitrators (one chosen by ISOC, one by the chapter and one
>> elected by the two arbitrators) and the language to be chosen at the time
>> of the arbitration.
>>
>>
>>
>> We propose the following amendment to Paragraph 11
>>
>>
>>
>> Any dispute, controversy or claim arising under, out of or relating to
>> this charter and any subsequent amendments of this charter, including,
>> without limitation, its formation, validity, binding effect,
>> interpretation, performance, breach or termination, as well as
>> non-contractual claims, shall be referred to and finally determined by
>> arbitration in accordance with the WIPO Arbitration Rules. The arbitral
>> tribunal shall consist of three arbitrators, one chosen by ISOC, one by the
>> chapter and one elected by the two arbitrators. The place of arbitration
>> shall be Geneva, Switzerland. The language to be used in the arbitral
>> proceedings shall be chosen at the time of the arbitration.
>>
>>
>>
>> Comments – After Paragraph 11 – Missing Clause
>>
>>
>>
>> The most important part is missing, which is the applicable law. Lack in
>> the definition of the applicable laws drives the impossibility of
>> interpreting contract terms and their legal concepts. As one example, one
>> effect of this lack of definition of applicable law, combined with
>> exemption from court jurisdiction in favour of the arbitral tribunal, would
>> not be valid for Italian law under art. 1341 civil code.
>>
>>
>>
>> In conclusion, we remain of the opinion that the role of chapters is to
>> promote the global principles of ISOC through the application of approaches
>> adapted to the local context. We believe that there is value in retaining a
>> bottom-up nature in the relationship with the chapters, rather than
>> top-down, and that should be articulated with appropriate language in order
>> to render the Internet Society a global recognised organisation.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Alessandro Berni
>>
>> On behalf of the board of Societa’ Internet – ISOC Chapter Italy
>>
>>
>>
>>
>>
>> On Mon, Jul 31, 2017 at 12:06 PM, Joyce Dogniez <dogniez at isoc.org> wrote:
>>
>> Dear Chapter Leaders,
>>
>>
>>
>> Internet Society Chapters are a very important part of our organization.
>> They act as a local presence globally to advance and represent ISOCs
>> mission, vision and principles. They are a crucial vehicle for ISOC to
>> drive the local advocacy efforts as well as implement activities and
>> actions at local level.
>>
>> To be able to do this it is important that Chapters are well structured,
>> well governed, functional and that there is a clear definition of the role
>> of Chapters.
>>
>>
>>
>> Since 2013 we have continued to strengthen our relationship with our
>> Chapters and are working with them to improve on a number of areas through:
>>
>>    - The introduction of standardized Charter agreements to clarify the
>>    role of and the support of Chapters
>>    - The introduction of minimum standards and a Chapter Performance
>>    Evaluation to identify and support areas of improvement
>>    - The increase of financial and other support for Chapters
>>
>>
>>
>> With the increased financial support to our Chapters we also have an
>> increased responsibility and accountability towards our community. It is
>> the responsibility of Internet Society’s leadership to manage its funds in
>> a responsible and transparent manner.
>>
>> This implies that the legal relationship between Internet Society and its
>> Chapters needs to be well defined.
>>
>>
>>
>> As you all have seen Internet Society launched a new brand identity over
>> the last months, with a new logo, new font, new colours, a different tone
>> of voice, etc. Some of you have already been implementing this.
>>
>> As the local voices of the Internet Society, it is important that our
>> Chapters carry that same image and message.
>>
>>
>>
>> For all these reasons, we are introducing a revised Chapter Charter that:
>>
>>    - Clarifies the relationship between Internet Society and its
>>    Chapters, including external communications guidelines
>>    - Clarifies the expectations (minimum criteria, governance structure
>>    and support) for both parties
>>    - Clarifies the expectations in terms of Internet related positions
>>    taken by Chapters
>>    - Clarifies the use of the Internet Society Brand and use of
>>    Intellectual Property
>>    - Clarifies the terms and accountability for funding provided by
>>    Internet Society
>>    - Clarifies the terms of termination of a Chapter
>>    - Reduces the liability in case of abuse or misuse of funding and
>>    branding
>>
>>
>>
>> The attached agreement has been reviewed by the Chapters Advisory Council
>> Steering Committee who have given extensive feedback and input (thanks
>> again!!).
>>
>>
>>
>> We understand that some of the changes in the agreement will imply some
>> changes at Chapter level and we will of course work with all of you to
>> ensure you can go through the necessary processes at local level in due
>> time.
>>
>> We will expect Chapters to sign the revised agreement before 1st of
>> January 2018 to still be eligible for Chapter funding.
>>
>>
>>
>> Therefore, I’d like to ask you all to review the attached Chapter Charter
>> in *the next 30 days, until 31st August* and please contact
>> chapter-support at isoc.org with any questions or specific issues you may
>> have. A French and Spanish version will be available later this week.
>>
>>
>>
>> I look forward to working together to continue to strengthen our Chapters
>> and to support the important work you do on the ground advancing our
>> mission.
>>
>>
>>
>>
>>
>> Kind regards,
>>
>>
>>
>> Joyce
>>
>>
>>
>>
>>
>>
>>
>> —
>>
>> Joyce Dogniez, CMM
>>
>> Senior Director Global Engagement
>>
>> Internet Society
>>
>>
>>
>> dogniez at isoc.org
>>
>> Mob/Whatsapp: +352 621 266 189 <+352%20621%20266%20189>
>>
>> Skype: joycedogniez
>>
>>
>>
>>
>> _______________________________________________
>> As an Internet Society Chapter Officer you are automatically subscribed
>> to this list, which is regularly synchronized with the Internet Society
>> Chapter Portal (AMS): https://portal.isoc.org
>>
>>
>>
>> * <https://portal.isoc.org>*
>>
>> --
>>
>> <https://portal.isoc.org>
>>
>> *-- Alessandro Berni, <
>> <https://portal.isoc.org>alessandro.berni at gmail.com
>> <alessandro.berni at gmail.com>*>
>> _______________________________________________
>> As an Internet Society Chapter Officer you are automatically subscribed
>> to this list, which is regularly synchronized with the Internet Society
>> Chapter Portal (AMS): https://portal.isoc.org
>
> --
> Best regards,
> Veni
> http://veni.com
>
> ***
> The opinions expressed above
> are those of the author, not of
> any organizations, associated
> with or related to him in
> any given way.
> ***
>
>
> == Sent from my phone, so any spelling mistakes are caused by the
> touchscreen keyboard. Also, that's the reason for using short words and
> phrases.
>
> _______________________________________________
> As an Internet Society Chapter Officer you are automatically subscribed
> to this list, which is regularly synchronized with the Internet Society
> Chapter Portal (AMS): https://portal.isoc.org
>
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