[Chapter-delegates] Revised Chapter Agreement

Veni Markovski veni at veni.com
Thu Aug 31 11:04:08 PDT 2017 

If we would like to do it in a friendly way, perhaps former Trustees could
serve as such? Or former VPs?


On Thu, Aug 31, 2017 at 18:01 Richard Hill <rhill at hill-a.ch> wrote:

> Yes, I agree that it would be good to add a mediation clause as a first
> step.  WIPO offers mediation services also.
>
>
> Best,
>
> Richard
>
>
>
> *From:* John More [mailto:morej1 at mac.com]
> *Sent:* Thursday, August 31, 2017 19:32
> *To:* veni at veni.com
> *Cc:* Alessandro Berni; Joyce Dogniez; Richard Hill;
> chapter-delegates at elists.isoc.org
>
>
> *Subject:* Re: [Chapter-delegates] Revised Chapter Agreement
>
>
>
> I agree with Richard on the arbitration issues.  I would suggest, having
> written a fair number of international contracts and US contracts, that
> arbitration be used as a last resort and a provision be made for
> mediation.  The benefit of mediation is much lower costs and a fair chance
> at success by having a mediator work with the parties to resolve their
> differences.
>
>
>
> John More
>
>
>
>
>
> On Aug 31, 2017, at 4:29 AM, 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
>
>
>
-- 
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.
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