[foundation-board] Vote on Communia membership

Thu Aug 18 15:45:03 UTC 2011

Sorry, Jordan, been out the country for a week.  I would go +1, but
could you explain Anne-Catherine's comment about member's obligations:
' Article 20 of the statutes states that they don't have any personal
obligation and are only responsible for the execution of their
mandate'.  I can't quite understand what the mandate is.  Apologies if
obvious.

On 18 August 2011 07:23, Jordan S Hatcher <jordan at opencontentlawyer.com> wrote:
> Thanks Paula.
>  Trying to nudge this along -- Becky, James, Martin, Ben? Any questions or
> thoughts?
> Thanks
> Jordan
>
> On 17 Aug 2011, at 15:48, paula le dieu wrote:
>
> +1
> Sorry for slow response. I also vote +1 Good people with good goals. Third
> the view that we need to keep an eye on lobbying.
> Regards
> Paula
>
> On 11 August 2011 13:53, Rufus Pollock <rufus.pollock at okfn.org> wrote:
>>
>> I'm also +1 (while noting Jordan's point about keeping an eye on this
>> going forward). COMMUNIA was good, we're not being asked for any
>> specific resource and there does not seem to be any obvious legal
>> downside other than the possible legal hassle.
>>
>> Rufus
>>
>> On 10 August 2011 20:05, Jordan S Hatcher <jordan.hatcher at okfn.org> wrote:
>> > Hi Board
>> > Have been getting some emails that we need to sign this documentation
>> > tout
>> > suite. Details below.
>> > I can't see us doing this without a formal board vote as it involves our
>> > company becoming a member of another company.
>> > The proposal is from Jonathan and sponsored by Rufus (correct me if I'm
>> > wrong) to be a founding member of the a new international association
>> > based
>> > in Brussels for Communia. This is the new organisation founded after the
>> > EU
>> > funding ended for the Communia project.
>> > As I see it, Communia at this point may be on a trajectory towards
>> > becoming
>> > a lobbying organisation -- to me that's not a show stopper, but is
>> > something
>> > we'll have to keep under review as we sign up to contracts such as
>> > Omidyar
>> > and look at our funding sources moving forward.
>> > I vote yes.
>> > Thanks
>> > Jordan
>> > Begin forwarded message:
>> >
>> > From: Anne-Catherine Lorrain <aclorrain at gmail.com>
>> > Date: 9 August 2011 20:41:41 GMT+01:00
>> > To: Jordan S Hatcher <jordan.hatcher at okfn.org>, Prodromos Tsiavos
>> > <p.tsiavos at lse.ac.uk>, "Square One Dr Peter Troxler (KvK 24480536)"
>> > <peter at square-1.eu>, Giancarlo.Frosio at law.duke.edu, Primavera de Filippi
>> > <pdefilippi at gmail.com>, Ignasi Labastida i Juan <ilabastida at ub.edu>,
>> > Maja
>> > Bogataj <maja.bogataj at ipi.si>, Frank Kresin <frank at waag.org>, Justyna
>> > Hofmokl <justyna.hofmokl at gmail.com>, Alek Tarkowski
>> > <alek at creativecommons.pl>, d kd <dalitkd at gmail.com>, Federico Morando
>> > <federico.morando at polito.it>, Marcello Mustilli <m.mustilli at blmius.com>,
>> > Maarten Brinkerink <mbrinkerink at beeldengeluid.nl>, Philippe Aigrain
>> > <philippe.aigrain at sopinspace.com>, Bourcier
>> > <daniele.bourcier at cersa.cnrs.fr>, Jonathan Gray
>> > <jonathan.gray at okfn.org>,
>> > filip at metamorphosis.org.mk, Diane Peters <diane at creativecommons.org>,
>> > Diane
>> > Cabell <dc at icommons.org>, Paul Keller <pk at kl.nl>,
>> > juancarlos.demartin at polito.it, Davide Piazzoni
>> > <dott.piazzoni at studioruo.com>, John Hendrik Weitzmann
>> > <jhweitzmann at mx.uni-saarland.de>
>> > Cc: melanie dulong <melanie.ddr at gmail.com>, Julien Ciarniello
>> > <avocat at ciarniello.net>
>> > Subject: (Communia Intl Association) - some useful
>> > reminders/explanations
>> >
>> > Dear All,
>> >
>> > Following the previous Email conversations, and notably following the
>> > Email
>> > from our Attorney, some of you have had questions about the next steps
>> > for
>> > the legal establishment of the Association and about the role of our
>> > Attorney. It seems that a few reminders and further explanations won't
>> > hurt
>> > :)
>> >
>> > Regarding the context of the legal constitution of Communia Intl
>> > Association
>> > in Brussels:
>> >
>> > The remaining budget from the former Communia network - that had to be
>> > spent
>> > before end 2010 - has been allocated to the legal constitution of a
>> > Communia
>> > Intl Association in Brussels. The role of Julien Ciarniello as our
>> > Attorney
>> > is to help us in this task under Belgian law. Therefore, the
>> > to-be-formed
>> > association is Julien's client (but only regarding these early steps of
>> > establishment). Julien needs documents from each founding member and
>> > administrator ONLY for the establishement of the association, so that he
>> > can
>> > legally represent each of us to the notary and to the governmental
>> > authorities.
>> > The required Power of Attorney (original document to be sent by post) is
>> > needed for the legal constitution of the Association until it is
>> > acknowledged by the government, not beyond. The notarization is the
>> > first
>> > step. If there are any further steps, they are limited to the
>> > representation
>> > of founding members to the administration during the establishment of
>> > the
>> > association. The Power of Attorney has thus a limited scope.
>> > The POA also provides that our Attorney names the first board of
>> > directors
>> > and is entitled to attend our GAs.
>> > It is thus quite similar to the US/UK "incorporator".
>> >
>> > Regarding the statutes of the Association:
>> >
>> > The final version of the statutes (in French) has been communicated to
>> > you.
>> > However, we agree that an English translation is necessary so that
>> > everybody
>> > knows what she/he exactly signs for.
>> > The English translation of the final version of the statutes is not yet
>> > ready. In some previous exchanges of Emails, Mélanie and i tried to sum
>> > up
>> > the most important provisions of the statutes. We first had to agree (in
>> > English) amongst members about the main legal provisions, and we then
>> > had to
>> > discuss with our Attorney on the provisions in French, which took more
>> > time
>> > than expected.
>> > You will find below an earlier Email detailing the main provisions of
>> > the
>> > statutes of the Association in English.
>> > You can also find the information on the wiki page
>> > (https://private.communia-project.eu/wiki). However, this version does
>> > not
>> > exactly correspond to the final one. In the draft on the wiki, you will
>> > find
>> > many question marks that have been answered since then.
>> > This already gives a quite accurate view on what an Association means
>> > under
>> > Belgian law in terms of liabilities for its members, i.e. not
>> > much: Article
>> > 20 of the statutes states that they don't have any personal
>> > obligation and are only responsible for the execution of their mandate.
>> > Please also note that we have managed to introduce provisions allowing
>> > us to
>> > organize meetings (GAs and CAs) by telecommunication means with minimal
>> > requirements.
>> > We have to update the wiki with the final draft of the statutes
>> > translated
>> > in English. We'll try to take care of this as soon as we can.
>> > i hope this has been helpful for you to have the information you need
>> > for
>> > the moment.
>> > Most of all, we hope that you'll be able to send the POAs and all
>> > required
>> > documents to Julien shortly, as we need to move on.
>> > Sorry for this long Email, and thank you for your input.
>> > Best regards,
>> > --
>> > Anne-Catherine Lorrain
>> >
>> >> ---------- Forwarded message ----------
>> >> From: Anne-Catherine Lorrain <aclorrain at gmail.com>
>> >> Date: 2011/2/17
>> >> Subject: COMMUNIA AISBL - Proposal for draft Statutes
>> >> To: communia-members at lists.communia-project.eu
>> >> Cc: Mélanie Dulong de Rosnay <melanie.ddr at gmail.com>, Julien Ciarniello
>> >> <avocat at ciarniello.net>
>> >>
>> >>
>> >> Dear All,
>> >>
>> >> Good news. Our Belgian Attorney, Julien Ciarniello (here in cc), has
>> >> been
>> >> able to provide us with a first draft of the Statutes in English.
>> >>
>> >> The legal regime for the constitution of an International Association
>> >> (AISBL) in Belgium is very liberal. The basic principle is: what is not
>> >> expressly forbidden by the law shall be allowed.
>> >>
>> >> Please find below a 'skeleton' for a first draft of the Statutes,
>> >> including the essential clauses, which need to be discussed amongst
>> >> members.
>> >> The rules for the functioning of the Association, particularly
>> >> regarding
>> >> the General Assembly and the Administrative Council, are entirely left
>> >> to
>> >> the freedom of choice of the drafters/members. Most of the following
>> >> drafted
>> >> paragraphs are only examples.
>> >>
>> >> I will put all this on the wiki shortly, so that you can comment and
>> >> complete the draft.
>> >>
>> >> Shall we set a deadline for comments? Is it reasonable to hope that the
>> >> Statutes can be submitted to the notary, let's say by early April?
>> >> Thank you all for your contribution.
>> >> Looking forward to reading your comments.
>> >> All the best,
>> >> Anne-Catherine
>> >>
>> >> --
>> >> Anne-Catherine Lorrain
>> >> aclorrain at gmail.com
>> >> Mob.: +32 473 99 97 92
>> >> www.aclorrain.fr
>> >>
>> >> ------------------------------------------------------
>> >>
>> >> COMMUNIA AISBL - Proposal for draft Statutes
>> >>
>> >> TITLE I. APPELLATION - ASSOCIATION HEADQUARTERS
>> >>
>> >> Appellation
>> >> The International Non Profit making Association has the appellation:
>> >> "COMMUNIA, The International Association on the Digital Public Domain",
>> >> also called "Communia", hereafter referred to as "the Association".
>> >>
>> >> Headquarters
>> >> The headquarters of the Association are established in Belgium in
>> >> Brussels, in the Brussels-Capital region.
>> >>
>> >> TITLE II. ASSOCIATION OBJECTIVE - DURATION
>> >> Objective:
>> >> The non profit making aim of the Association’s international interest
>> >> is
>> >> to:
>> >> a)
>> >> b)
>> >> c)
>> >> d)
>> >> ...
>> >>
>> >> Duration:
>> >> The Association is constituted for an unlimited duration.
>> >>
>> >> TITLE III. MEMBERS - CONTRIBUTIONS - EXIT
>> >>
>> >> - Members:
>> >> The Association is composed of participative (full) members and
>> >> members.
>> >> The minimum number of participative members may not be less than three
>> >> (3).
>> >> The number of members is not limited.
>> >> Only participative members have all the rights attached to membership
>> >> [vote].
>> >>
>> >> Membership is decided by [the General Assembly / the Administration
>> >> Council (or "Board")?].
>> >>
>> >> [Specific to Communia: conditions of membership for Research Centres?
>> >> other specific rules regarding members?]
>> >>
>> >> Participative members:
>> >> [specific rules on "participative members" is not mandatory]
>> >> Participative members have the right to vote.
>> >> [other specific rules?]
>> >>
>> >> Right to vote - Rights of members: [non mandatory article]
>> >> [e.g.: The General Assembly includes a representative from each
>> >> (participative member, participant centre? other?). Each representative
>> >> only
>> >> has one vote.]
>> >>
>> >> Contributions:
>> >> The resources of the Association include (...).
>> >> Equally, the General Assembly may determine the amount of the annual
>> >> contribution.
>> >>
>> >> - Voluntary retirement - resignation - suspension - exclusion
>> >> Any member of the Association is free to withdraw from it at any time,
>> >> notifying the resignation to the Administration Council in writing.
>> >>
>> >> The exclusion of a participative member can only be imposed by the
>> >> General
>> >> Assembly deciding by two-thirds majority of its votes present or
>> >> represented. The exclusion of an associate member may be ordered by the
>> >> Board of Directors deciding with majority.
>> >>
>> >>
>> >> TITLE IV. ORGANISATION
>> >>
>> >> [note: the organisation of the Association is free. The existence of a
>> >> General Assembly and of an Administration Council are not mandatory,
>> >> but is
>> >> generally provided by the Statutes to facilitate the management of the
>> >> Association]
>> >>
>> >> Bodies of the Association
>> >> The bodies of the Association are:
>> >> - the General Assembly;
>> >> - the Administration Council
>> >>
>> >> Section I. The General Assembly
>> >>
>> >> Competence:
>> >> The general assembly possesses plenary powers that permit the execution
>> >> of
>> >> the objective and the activities of the Association.
>> >> The general assembly has complete authority. More generally, the
>> >> general
>> >> assembly determines the general policy of the Association.
>> >>
>> >> Reserved exclusively to its powers, duties and functions are:
>> >> - amendment of statutes;
>> >> - appointment and removal of administrators;
>> >> - appointment and dismissal of auditors/commissioners if it so happens
>> >> and
>> >> fixing their compensation where compensation is awarded;
>> >> - discharging of grants to administrators and commissioners
>> >> - approval of budgets and annual accounts;
>> >> - voluntary dissolution of the Association ;
>> >> - exclusion of a member;
>> >> - adoption of an internal rule of order;
>> >> - all cases where statutes require it.
>> >>
>> >> Composition:
>> >> The general assembly is composed of all associate members.
>> >> It is chaired by [the Chairman of the Administration Council / or by a
>> >> president elected by the general assembly under a proposal from the
>> >> administration council].
>> >> The general assembly is presided over by a president elected by it
>> >> under a
>> >> proposal from the administration council.
>> >>
>> >> The general assembly may establish, if necessary, subsidiary bodies, of
>> >> a
>> >> temporary or a permanent nature. It determines the general composition,
>> >> the
>> >> authority and the duration of the mandate of these bodies.
>> >>
>> >> Convocation:
>> >> A meeting of the general assembly must be held at least (once each
>> >> year?).
>> >> Modes of convocation (by E-mail or any other means of communication, at
>> >> least X days before the meeting...)
>> >> Ordinary meetings
>> >> Extraordinary meetings
>> >>
>> >> Mode of decision:
>> >> Quorum? Such quorum must be validated by the Administration Council.
>> >> Voting rules: each participative member has one vote.
>> >>
>> >> Conditions for amendments to statutes [non mandatory]
>> >> Statutes may only be amended by a deed drawn up by a notary.
>> >> Any proposal having for its aim an amendment of the statutes or the
>> >> dissolution of the Association must proceed from the administration
>> >> council
>> >> or from at least one-third (1/3) of the members of the Association.
>> >>
>> >> Section II. The Administration Council
>> >>
>> >> Competence - Representation:
>> >> The Administration Council is invested with powers to act in the name
>> >> of
>> >> the Association and to carry out all acts of management,
>> >> administration, and
>> >> settlement that are in the interests of the Association, with the
>> >> reserve of
>> >> the competence of the general assembly.
>> >> The Administration Council has the broadest powers for the
>> >> administration
>> >> and management of the Association. Its powers notably consist in:
>> >> - taking decisions, between meetings of the general assembly, within
>> >> the
>> >> framework of the global policy determined by the general assembly;
>> >> - analyse decisions concerning the budget of the Association.
>> >> - (...)
>> >>
>> >> The international secretariat [there will probably be one] consists of
>> >> (...)
>> >> The international secretariat is responsible for the implementation of
>> >> decisions taken by the general assembly and the administration council.
>> >>
>> >> Administrators not specifically invested by the general assembly with
>> >> specific functions and missions exercise their power through boardroom
>> >> participation in administration council meetings.
>> >>
>> >> The administration council elects a president (...)
>> >>
>> >> The administration council may delegate daily management, or give
>> >> specially elected powers to one or more persons, whether administrators
>> >> or
>> >> not, members or not, who exercise their intercessions in an individual
>> >> manner and whose powers it shall set.
>> >>
>> >> All actions undertaken by the Association are, without special
>> >> procurations, signed by (X) administrators [or by the executive
>> >> director]
>> >> (...)
>> >>
>> >> Judicial actions, either as plaintiff or defendant, are pursued by the
>> >> administration council, represented by the president, the executive
>> >> director
>> >> or an administrator appointed to this effect by it.
>> >>
>> >> Each year, and at the latest, six month after the closing date of the
>> >> Association’s financial year, the administration council presents to
>> >> the
>> >> general assembly for approval the budget for the following financial
>> >> year,
>> >> and the annual accounts for the financial year just past, in conformity
>> >> with
>> >> article 53 of the law.
>> >>
>> >>
>> >> Composition:
>> >> The Association is administered by a council composed of a president
>> >> and X
>> >> other members, being physical persons.
>> >>
>> >> Have been appointed as members of the Administration Council:
>> >> - Administrators:
>> >> - President:
>> >> - Vice-President:
>> >> - Secretary General:
>> >>
>> >> The administrators are called by the general assembly for a mandate of
>> >> three [less?] years.
>> >>
>> >> The administration council may invite observers, consultants, members,
>> >> or
>> >> not, with a consultative vote.
>> >>
>> >> The functions of administrators come to an end with death, resignation,
>> >> civil incapacity or placement under temporary administration, removal,
>> >> or
>> >> expiry of mandate. Any administrator is free to retire at any moment
>> >> from
>> >> his functions by addressing the administration council of his/her
>> >> resignation in writing, which acts on it and acknowledges it at the
>> >> next
>> >> meeting of the general assembly.
>> >>
>> >> The mandate of the administrator is not remunerated, expect by a
>> >> decision
>> >> to the contrary by the general assembly.
>> >>
>> >> Meetings and convocations:
>> >> The administration council convenes when called by the president or, in
>> >> its absence, by an administrator.
>> >> The convocation is transmitted by letter, fax, electronic mail or any
>> >> other means of communication.
>> >>
>> >> The administration council forms a board and may only make a ruling if
>> >> at
>> >> least a quarter of its members are present or represented.
>> >> Its decisions are made with a simple majority of votes. In case of a
>> >> divided vote, that of the president or his/her replacement is decisive.
>> >>
>> >> Mode of decision:
>> >> Quorum?
>> >> Decisions are documented recorded in the form of minutes. These minutes
>> >> are signed by the person who presided over the sitting or by an
>> >> administrator and are documented in a special register. The extracts or
>> >> copies that must be produced are signed by an administrator.
>> >>
>> >> TITLE V. Miscellaneous
>> >>
>> >> Association financial year
>> >> The Association's financial year begins on the First of January and
>> >> ends
>> >> on the Thirty-First of December each year.
>> >> Exceptionally, the first financial year will end on XX/XX/2011.
>> >> Audit?
>> >>
>> >> Dissolution and liquidation
>> >> The general assembly adjudicates on the dissolution of the Association
>> >> (...).
>> >>
>> >>
>> >
>> > ____
>> > Mr. Jordan S Hatcher, JD, LLM
>> > More at: <http://www.jordanhatcher.com>
>> > Co-founder:  <http://www.opendatacommons.org>
>> > Open Knowledge: <http://www.okfn.org/>
>> >
>> > _______________________________________________
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>> > foundation-board at lists.okfn.org
>> > http://lists.okfn.org/mailman/listinfo/foundation-board
>> >
>> >
>>
>>
>>
>> --
>> Co-Founder, Open Knowledge Foundation
>> Promoting Open Knowledge in a Digital Age
>> http://www.okfn.org/ - http://blog.okfn.org/
>>
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> ____
> Mr. Jordan S Hatcher, JD, LLM
> More at: <http://www.jordanhatcher.com>
> Co-founder:  <http://www.opendatacommons.org>
> Open Knowledge: <http://www.okfn.org/>
>
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