Referring to Jeremy Harrison’s reply, the senior legal counsel of APNIC. While his reply might have briefly painted the picture of the trustee’s corporate structure of Apnic, it further creates more confusion and begs the following questions:-
(1) How do we, a member of the public, is able to confirm if Paul Wilson is indeed a de facto trustee, as there is no Declaration of trust available for the scrutiny of public? Since it involves public welfare and interest, so a Declaration of Trust shall be made available for the eyes of the public. (2) Any conflict of interest when Paul is the DG, Secretary, member of EC, as well as a Trustee? We as community are not given the benefit to review how wide is the power of trustee and what discretionary power or prerogative is vested unto Paul Wilson. (3) If there any legal framework to guide Paul as a Trustee? Will there be any repercussions on Paul if he acts in bad faith as a Trustee? I understand that it might be well addressed in Apnic’s own declaration of trust but in the event if it is in conflict with Australia’s trustee act, which provision shall prevail and if Paul will actually be subjected to any kinds of punishment or face any repercussion if he is found acting in bad faith, the check and balance is incomplete. (4) The incorporation of APNIC PTY LTD in the first place is done wrongly as being an non profit organization that is created to serve the needs of public in the APAC region, it shall be formed in the capacity of member-based non profit organization rather than a private limited company by shares. Additionally such incorporation also creates further hassles in having the need to formulate special provisions in governing the role of the board of director whos also nominated as trustee, with more red tapes to comply with, all in all indirectly creates more hurdles to progress with the advancement of organisation's interests. Singapore on the other hand have NGO that can be setup as society, in which truly allows members to become its stakeholder, why should we complicate and over-engineer such important institution into a profit making based body structure such as company limited by shares. Instead, we shall make members the ultimate beneficiary and true stakeholders of the institution so everyone benefits from such direction rather than leave the entire Asian Pacific internet into one single person who is located far away from most of its member base. More info can be found at https://www.guidemesingapore.com/business-guides/incorporation/other-business-entity-types/setting-up-a-non-profit-entity-in-singapore---part-1 On Sun, Jan 22, 2023 at 10:11 PM Jeremy Harrison <[email protected]> wrote: > Hi Kevin > > > > APNIC is an open, membership-based organization led by the Executive > Council which is elected by APNIC’s Members. To help explain how this > works, we’ve set out below an outline of the current structure of APNIC. > > > > We would also encourage anyone interested in this topic to read about the > history of APNIC in the following chapter from Kilnom Chon’s Asia History > Project, published in 2013 - > https://www.apnic.net/wp-content/uploads/2017/01/HistoryofAPNIC1993-2013v3.pdf. > The specific details explaining the structure of APNIC and why it was > chosen can be found from page 13 of that document. > > > > It is correct that APNIC Pty Ltd is a private company registered in > Australia. However, the structure of APNIC was established prior to its > incorporation in Australia which is best explained in the document linked > above. > > > > APNIC (to which the Members belong) is a Special Committee of the Board of > APNIC Pty Ltd. The Members of the Special Committee elect the Executive > Council to represent them. The Executive Council has all the powers of the > directors of the company under the APNIC By-laws (see section 30(c) of the > By-laws here - > https://www.apnic.net/about-apnic/corporate-documents/documents/corporate/by-laws/#partv > ). > > > > There is one share on issue in APNIC Pty Ltd. This share is held on trust > for the Executive Council of APNIC, with the Executive Council choosing who > holds the share as trustee. The share was originally held on trust by > APNIC’s first Director General, David Conrad. When he resigned, the > Executive Council decided to make his replacement as Director General, Paul > Wilson, the trustee. Paul, as trustee, does not obtain any benefit from > owning the share and cannot do anything with the share without the approval > of the Executive Council. > > > > For anyone not familiar with the concept of a ‘trust’, it is a > relationship where one person (the Trustee) holds property for the benefit > of another (the Beneficiary). In the case of APNIC, the beneficiary of the > one share in APNIC is the APNIC Executive Council (as the elected > representatives of APNIC). The Trustee is listed as being the legal holder > of the share, however the Executive Council is the beneficial owner – > meaning that only the Executive Council can derive a benefit from the > share. This means that the Trustee is the owner in name only and under the > trust relationship established with the Executive Council, the Trustee > cannot do anything with the share without the approval of the Executive > Council. This relationship is noted with the Australian corporate regula > tor, ASIC (https://asic.gov.au/), which shows that Paul Wilson holds a > legal interest in the share but does not hold a beneficial interest in the > share. > > > > Because the share in APNIC Pty Ltd is held on trust for the Executive > Council, the Executive Council also chooses who may be appointed as a > director of APNIC Pty Ltd. At the present time there is one director and > that person is also APNIC’s Director General – Paul Wilson. There is a > requirement under Australian law for a private company to have at least one > director who is resident in Australia, so this role is currently fulfilled > by Paul. > > > > To summarize, the Executive Council decides who holds the share in APNIC > Pty Ltd and who is appointed as a director of APNIC Pty Ltd. > > > > We hope this has helped clarify any misunderstandings about the structure > of APNIC. > > > > Kind regards > > > > Jeremy > > > > > > *Jeremy Harrison* > Senior Legal Counsel, APNIC > > > > > > *From:* Kevin Pham <[email protected]> > *Sent:* Wednesday, 18 January 2023 9:02 AM > *To:* [email protected] > *Subject:* [apnic-talk] APNIC dictatorship ??? > > > > Is it true that APNIC is actually a private company owned by one person? > > > > I heard that the executive committee actually has no legal status in > Australia as APNIC only has one director, one company secretary and one > shareholder - all of whom are the same person. > > > > Can someone explain if this is true and if it’s allowed? >
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