[lac-discuss-en] Final Consideration - Member of ALAC Election (Part 1)
josefranciscoarce at gmail.com
josefranciscoarce at gmail.com
Wed Aug 15 20:06:44 UTC 2012
[[--Translated text (es -> en)--]]
Subject: Final Consideration - Member of ALAC Election (Part 1)
From: josefranciscoarce at gmail.com
Dear,
I've come to this informal tell you the reason for the delay
news on elections for members of ALAC. First I want
on behalf of the president and secretary (Sylvia) to thank all the
members of the region, staff personnel and Olivier, president of
ALAC, for the help they have provided in this topic.
If I want to emphasize, before exposing them some ideas to arrive, which
during which time staff requested ICANN staff
Audio of the meeting in San Juan in order to be able to hear
Rule 8 discussions and technical issues these audios not
function. The idea was to see what was the spirit of that rule.
Some of you who were at that time have put in
list and it gradecemos. And they consulted the legal staff of ICANN hacerca
of a present situation.
As this email will be long I'm going to split in two, so that
translations are better.
*
*
* Background *
Having called for elections to elect the representative of LACRALO
to ALAC for the period 2012-2014, effective July 15, 2012, is
Nominations Nominations accepted until July 29, 2012. Then
receptaron acceptances are those nominations until July 31
2012, being the nominees and accepting of their applications:
Fatima Cambronero, Humberto Carrasco, Dev Anand Teelucksingh.
Subsequently set on August 9 as the date for
teleconference for candidates to make their presentations and give
their proposals.
On August 8, after receiving emails and
communications of different members of our region concerned about the
Humberto Carrasco situation, to be studying and living in Edinburgh
(Scotland) communicated the situation in the discussion list LACRALO
opening discussion of the community with different types of
demonstrations.
*
*
* Operating Principles LACRALO and MoU between ICANN and LACRALO *
As expressed above, the requirements imposed on
our Operating Principles and to be met by representatives of
LACRALO to ALAC are expressly set out in Point *
8 * of these Principles, which provide in relevant part:
"[...] The selected representatives must be members of different
ALS, * must have their principal place of residence in different countries
region *, and their nationalities must be different [...] ".
< https://community.icann.org/download/attachments/2264378/Principios%2520Operativos%2520de%2520la%2520LACRALO%2520Rev1%2520-%2520ES%2520.pdf?version=1&modificationDate=1283972736000>
https://community.icann.org/download/attachments/2264378/Principios%2520Operativos%2520de%2520la%2520LACRALO%2520Rev1%2520-%2520ES%2520.pdf?version=1&modificationDate=1283972736000
In addition, the Memorandum of Understanding (MoU) signed by ICANN and LACRALO
in Point 5.4.1. has the same effect that the Principles
Operating:
"[...] The elected representatives must be members of different
ALS, * will
residence in one of the countries of the region and their nationalities *
have to be different. [...] ".
< https://community.icann.org/download/attachments/2264378/MOU%2520Between%2520ICANN%2520and%2520At%2520Large%2520Structures%2520in%2520the%2520LAC%2520Region%2520ES.pdf?version=1&modificationDate=1283972735000>
https://community.icann.org/download/attachments/2264378/MOU%2520Between%2520ICANN%2520and%2520At%2520Large%2520Structures%2520in%2520the%2520LAC%2520Region%2520ES.pdf?version=1&modificationDate=1283972735000
The question to be determined is whether Humberto Carrasco has its
residence in one of the countries in our region, so it can be
accepted as a valid candidate to represent LACRALO to ALAC
within the election process we have underway.
We must therefore determine which means * "residence" *.
*
*
* Definition of Residence *
To determine what is meant by "residence" we must turn first
place our MoU and our Operating Principles that are LACRALO
which as a rule, first apply for all situations
occurring within our RALO.
Within two regulatory bodies, does not define what is meant or
meant by "residence".
However, one member of LACRALO, who was one of the
editors of both papers, Carlton Samuels, expressed in the list of
LACRALO discussion, stating that at the time of writing there
many discussions to determine whether to use the word
"Address", rather than the word finally used, which was
"Residence". This shows what was the spirit of the rule to choose
a word that has more to do with fact (factum) and not a word
involving a legal definition, as home.
However, LACRALO Operating Principles can not be analyzed in
isolation of the ICANN Bylaws, as under the MoU
held, LACRALO agree to abide by these regulations.
Also the last part of Item 8 of the Operating Principles reinforces
this idea:
"[...] The representatives shall be responsible for the duties
forth in the ICANN Bylaws * ". *
https://community.icann.org/download/attachments/2264378/Principios%2520Operativos%2520de%2520la%2520LACRALO%2520Rev1%2520-%2520ES%2520.pdf?version=1&modificationDate=1283972736000
Therefore, we must turn to the ICANN Bylaws to analyze whether
define what is meant by * "residence". *
The * ICANN Bylaws * in * Article 6 * referred to the Board
Directors, the * Section 2, subsection 2 * mentioned in arguments
earlier, refers to the requirement * diversity * ("Calculating
Diversity "to be met * Directors * Board in the process of
* selection made by the Nominating Committee * (NomCom), therefore,
not be analyzed in isolation from its context. This situation is what
corresponds to the history of Adam Peake. Not applicable to our case
analysis because the choice of representative should be LACRALO
by the same LACRALO and not by the Nominating Committee.
http://www.icann.org/en/about/governance/bylaws
For these purposes is that the article concludes that the *
"Home" * is determined by where the candidate has a
permanent residence and place of abode.
That is, even though this article does not provide for the situation to which
we are trying to solve, does not define what is meant by
"Residence", but it only defines the concept "home". Means
that concepts domicile and residence are different concepts, and that the
CV is one of the components characterizing the address.
*
*
* ICANN Bylaws and the laws of California *
Having analyzed the ICANN Bylaws and found no response in
themselves, about what we meant by "residence", the same laws
are those who tell us that we must resort to the laws of the State of
California.
* ICANN * is a non-profit public benefit corporation created
in 1998 under the laws of the State of California therefore
is subject to both California state law as to the
U.S. federal law.
One of the reasons why ICANN was formed as a corporation
profit public benefit is that the State of California offers a
rigorous framework for legal accountability for organizations
this type. The responsibilities that have been implemented through
ICANN's Bylaws and corporate structure should give
stakeholders confident that ICANN operates with the highest standards of
accountability.
http://archive.icann.org/en/accountability/frameworks-principles/legal-corporate.htm
*
*
* Laws of California *
* Guidelines for determining the residency status of 2010 * of the
* Franchise Tax Board State of California *, explicitly defined
who should be included in the quality of residents and the non-
residents:
* "California defines a resident as anyone: (1) in the state for other than
a temporary or transitory purpose; "*
What is meant by temporary or transitory purpose?This is explained
below: "* California boast more than a resident spends 9 months
a year in the state, however, spend spending less time does not create a
presumption of non-residency. Also, one may be a resident of California
Even Though His domicile is elsewhere ". *
This article must be understood in context. Taking into account the
definition that these guidelines do also address:
* "The term" domicile "has a special legal definition That is not the Same
as residence. Many Consider While domicile and residence states to be the
Saami, California makes a distinction and views as two Separate Them
concepts, Even Though They may Often overlap. For instance, you may be
domiciled in California but not a California resident or be you may be
domiciled in another state but be a California resident for income tax
purposes. *
* Domicile is defined for tax ** Purposes as the place Where You voluntarily
Establish yourself and family, not Merely for a special or limited purpose,
But With A present intention of making it your true, fixed, permanent home
and principal establishment.It is the place where, Whenever you are
absent, you intendant to return ". *
This definition is supplemented by making the doctrine:
* "Residence" ** and "domicile" are distinct concepts for California tax
purposes. "Domicile" denotes the one location with Which to have the person
MOST Settled and permanent connections and Where the person intends to
remain. [FN6] "Residence" denotes factual place of abode Any of Some
permanency, That Is, "more than a mere temporary sojourn." *
* "Regarding domicile, the Court of Appeal has with previously defined" domicile "as
the "Which one location with a person for legal Purposes is Considered to
Have The Most Settled and permanent connection, the place WHERE I intends
To Remain and to Which, Whenever I is absent, I have the intention of
Returning .... "*
* Http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=6792 * <http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=6792>
**
The California Election Code * 2010, * in * Article
2 * also specifies the criteria for determining residence and
address:
* "2021. (A) A person who leaves his or her home to go Into another state
In This precinct or state for temporary Purposes Merely, With The intention
of Returning, does not lose his or her domicile. *
* (B) A person does not gain a domicile in precinct Into Any Which I or
she eat for temporary Purposes Merely, without the intention of making
That his or her home precinct. "*
http://law.justia.com/codes/california/2010/elec/2020-2035.html
*
*
* Other laws that distinguish between Domicile and Residence *
Following the order indicating LACRALO Operating Principles, the MoU
signed with ICANN, the ICANN Bylaws and the laws of California appears
expressly and clearly the distinction between the two concepts of
residence and domicile, and define the concept of residence is
must meet to be a representative of LACRALO to ALAC.
Also, if we had to resort to other legislation to avoid
be any doubt, we find both in Chilean law, in
the Scottish and the UK, all distinguish between residence
and address, and define both concepts in the same manner and using
the same criteria.
Therefore, even if our laws did not provide this
situation (do) and we should resort to external law
Through its analysis, in all cases would reach the same result:
domicile and residence are different and separate concepts.
*
*
* 1) * Chilean Law
To strengthen California law distinguishes between home and
residence, we found the Chilean legislation and jurisprudence
statements in the same direction, keeping in mind the
Chilean legislation (Chilean Civil Code) that Mr. Humberto Carrasco
supports them in their email discussion list LACRALO.
Manifestations of Mr. Humberto Carrasco in the discussion list
LACRALO:
* "B. - The second, which is my interpretation, noting that I
tending primary residence (or home), but has a residence
secondary, or put another way, I am a resident not domiciled in
Edinburgh ". *
_______________________________________________
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