The term is forum non conveniens

The term I was looking for was forum non conveniens. The court’s prerogative to take or pass on a case if it believes it’s not the best forum.

One of the determining factors for a court deciding forum non conveniens is the activity of the entity in question. If the DAO acts as if it is prioritizing US law or custom over Cayman law or custom, that is potentially the behavior a US court could use to see the case under its jurisdiction. Because the prosecuting party is likely a US government entity standing on the precedent of recent victories (i.e. LBRY and Ooki DAO), a US court claiming forum non conveniens would put the DAO at a significant legal disadvantage.

However.

The court has no way to directly enforce forum non conveniens on the DAO. It can employ Mafia tactics and attack the DAO’s “family” — the SC, other doxxed official entities — especially considering US court gave the Alphabet Boys precedent to pierce the veil in the Ooki DAO case.

Having the SC as majority US persons is a huge disadvantage for the A in DAO, as the US is the jurisdiction the DAO seems to most fear. And you can bet the US-facing SC members will choose to protect themselves from possible censure — even if the DAO cannot be attacked directly — concerning actions the DAO takes potentially concerning the US.

The problem is, this caution for self-protection potentially works against the DAO’s argument for autonomy and might cause a US court to impose a greater hold over the DAO [read: SC] than it would if the DAO were to ACT LIKE A CAYMAN ENTITY without fear of looking like it isn’t.

For instance, the DAO directly staking into Apestake.io, a frontend that is geofenced away from the US, on chain, without a VPN, openly, seems to work in favor of the DAO being a Cayman entity and would reduce the argument a US court has for forum non conveniens. There are other concerns, I know. But I haven’t heard anything about this except “law is complicated, durr” and this topic is not beyond me.

For this and other issues, having an opinion from lawyers around the world seems to work in favor of the DAO being an international entity without a nexus in the US. Separating the powers of Director and Supervisor and giving the Supervisors — also from many, many countries — a prominent role in the decision making process towards US-adjacent decisions, seems to work in favor of the DAO’s autonomy as well.

Guess what doesn’t work in favor? An SC heavy on US persons and US person WGv0 appointees unilaterally making a decision to cautiously NOT do something that would cause censure to a company under US jurisdiction. What does that sound like? That’s right — an entity under US jurisdiction and following US law, even when law in its physical jurisdiction could be in conflict. The DAO is sitting in the Caymans, but it’s got US people making a decision that looks just like the decision that a company sitting in Topeka, Kansas would make. Which would cause a US court to take the case rather than pass on it.

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Can we mandate that people must include bars on every thread in order to get serious consideration? You know, to help with the forum non conveniens

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I do think you could have had a direct conversation first about this with @badteeth. In any case, I do not believe it is appropriate bringing families into this, even if it is a freestyle rap. Let’s keep things professional.

Where has Ape Foundation come out to say it is prioritizing US law? Certainly it is responding to US regulators because they have been the most aggressive, but nothing provided has stated that is the direct intention of the Foundation.

Also, it is not uncommon for DAOs registered in jurisdictions outside of the United States to have US service providers. The key point is that the DAO is making decisions via governance voting. Even if there are US-based Special Council members or in other positions, the Cayman Islands Supervisor and Director(s) of the Foundation are ultimately responsible for approving the actions of the DAO are compliant with Cayman law.

You’re still trying to make the point of having the foundation’s Supervisors and Director(s) outside of Cayman. It’s not about the US - we want the Supervisor and Directors to be in Cayman to protect the tax nexus of the foundation. We cannot afford to put this at risk. Also, Cayman law for this foundation structure only requires 1 Supervisor.

The DAO and its members are ultimately responsible for voting. So what if US persons have been elected via AIPs? The decisions were voted and approved by the DAO. We do not need to cater to US or other jurisdictions for the composition of these elected positions or appointments via approved AIPs.

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Where has Ape Foundation come out to say it is prioritizing US law? Certainly it is responding to US regulators because they have been the most aggressive, but nothing provided has stated that is the direct intention of the Foundation.

What? I think this comes from a total misreading of what I’m saying. I honestly don’t know where this is coming from.

This is 100% incorrect. I advocate for separation of powers, not separation of physical jurisdiction. Right now, the Director and Supervisor are the same entity because Cartan filed the papers that way. I never said those positions should be outside Cayman; as a matter of fact, I want them there.

Only 1 Supervisor is required; there should be more. The point of the Supervisor position is to oversee the Director, and this is a huge opportunity to decentralize DAO governance.

Another misunderstanding you’re having: The Supervisor position is required to have attachments to Cayman. CIMA licensing, et al. So there’s no way I could advocate what you said I did; it’s illegal. What I am advocating: The Supervisor can represent a group entity, and the members of that group can be from anywhere. And they should be, because not only does that decentralization help protect the DAO from US jurisdiction, but it gives a much-needed international perspective on operations. MUCH needed. Supervisors attend General Meetings with SC, so all of the information glut the DAO faced in its first iteration would help to be solved. #closethegap

The “so what” is that US courts can impose penalties directly on you via the pass-through precedent from the Ooki DAO case should a US court impose sanctions or censure on the DAO that would be impossible to actually impose on the DAO itself. This is what Cartan feared, and a point you made repeatedly when you praised them for taking on “considerable risk to themselves.” They did. It’s true. @veratheape is objectively less exposed to this threat than you are. Let’s agree on that and the actual point of my opinion before we move on.

It’s not about catering to the US. Read what I’m writing; I’m advocating exactly the opposite. Don’t cater to the US, because that’s what allows for their jurisdictional claims. It’s the COURT’s decision to impose forum non conveniens. Not yours. So electing US-facing SC and having US-based everything is catering to them from the court’s perspective.

My solution is internationalizing the DAO, from voting to operations. I’ve laid those thoughts out here and emailed you about it. I think you should take some time on these points, because they’ve been wholly misunderstood.

Misunderstandings seem to be running rampant right now. So I’ll attempt to fix my misunderstanding with @badteeth if you’ll fix your misunderstanding of my position on Supervisors and the US jurisdictional question (which isn’t a question, but everyone acts like it is, which ironically is what gives them rights, not a lawyer).

This is incorrect, hence the misunderstanding. The Supervisor does not have to be a Cayman resident (which is also more than simply having attachments) or even have attachments to Cayman at all. This is from my direct experience working with Walkers (who happens to be the same Cayman law firm that represents Ape Foundation) to setup a Cayman Islands foundation.

IMO there are better ways to further decentralize the DAO; it is unlikely the Cayman Islands Supervisor and Director when the primary concern they are covering at the moment is the tax nexus. Inherently by increasing the Supervisors as you are indicating to represent a more global presence, we are weakening the tax nexus.

It’s a slippery slope to indicate that we are not already an internationally representative DAO. For example, much of the largest voting power wallets in the most recent election were individuals/groups who are well known to not be living in the United States. ApeCoin DAO membership is already international, and it happened to vote US residents on Special Council. I get what you are trying to say on the “internationalizing operations”, but do you understand what I am getting at that you’re thinking of the 2nd level of ‘defense’? Sorry if my text is not clear here but I’ll try to elaborate. Essentially, the base layer is already an international membership - that is the DAO membership who votes. That is the primary case being made to regulators. Certainly we can (and will) be taking more steps to improve geographical representation in roles throughout the DAO (working groups and more), but that is more an internal operational decision.

I disagree. Again, it was an international DAO membership who voted for these representatives - it doesn’t matter what country they came from. Forcing the issue to specifically indicate we should not be voting US-based members would arguably be catering.

Degen Prop House
Apologies I have not had the time to sit down for a long period to give your proposal a thorough review. I will as soon as I can. Thanks

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My use of “attachments” was specific; you brought up residency, which I already know is different from attachments. That’s why I didn’t use “residency.”

I can’t verify your interactions with Walker; I wasn’t privy to those discussions. (All those founding documents should be made public along with the NDA form that causes information glut and the reasons it exists as process in this DAO.) Because the Supervisor role will now be separated from the Director role, and this is something many others agree should happen, the need for a Cayman attachment might change. The Supervisor may not need attachments, but it may need a representative with attachments. I look forward to discussing that in WGv0 with you, Walker, and with at least one other third party legal entity with a disinterested opinion.

I also disagree that Supervisors from not-Cayman weakens the tax nexus. If this is what Walker told you, it’s possible they could have been referring specifically to the scenario in which Cartan served both the Director and Supervisor role and there was no alternative (because no one had thought of it yet). If the Supervisor are present specifically to ensure compliance to Cayman law, and they or their representatives DO have attachments to Cayman (whether or not it’s required), you get the best of both worlds — decentralization and a strong tax nexus.

much of the largest voting power wallets in the most recent election were individuals/groups who are well known to not be living in the United States.

You wouldn’t show Snapshot to a court, so I really can’t take it here — we’ll obviously need to discuss how you came to this conclusion with better evidence.

I get what you are trying to say on the “internationalizing operations”, but do you understand what I am getting at that you’re thinking of the 2nd level of ‘defense’?

This isn’t tough to understand. I get your point here. There are two issues, one of entity jurisdiction and then others of how that entity interacts with jurisdictions.

Again, I look forward to discussion.

#closethegap

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@badteeth, I’ve edited the post to take out all the insulting and potentially insulting things I said and talk only about the issue.

If you say you weren’t targeting my opinion, I’ll believe you. New year, new energy!! My ideal outcome is working together, so I’m turning any potential toxicity off right now. I’ll move forward in a more professional manner, and at the same time, hope my ideas can be taken seriously because I research deeply and care a lot.

Happy New Year!

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I appreciate that, thank you.

I deleted my response as well to keep things on topic.

The passion and insight you bring to the DAO is admirable, wrapped in professionalism it’s invaluable. We’re all working towards the same goal, onwards!

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