The CEELI Institute
Judicial Studies Lesson Plan

“Justice in a Market Economy ”
June 2000

Day 9- Non-Profit Entities  

Course Materials (MS Word Document)

0945    Internal Governance

1030        Break

The CEELI Institute

Judicial Studies Lesson Plan
“Justice in a Market Economy”

June 2000
Day 9- Non-Profit Entities

NGO Organizational Forms, Terminology and Definitional Concepts

Objective: At the conclusion of the session, participants are familiar with NGO organizational forms, terminology and definitional concepts. 

Format: Lecture

Faculty: One, plus two staff

Audience: All participants

Time: Forty-five minutes

Equipment/materials:

Faculty Preparation:

Materials for Participants:

Participant Preparation:

Description: At the beginning of the session, each participant lists in writing the organizational forms for NGOs in their country (ten minutes).  The answers are collated by the staff while the instructor begins the lecture. 

The instructor begins the lecture (thirty-five minutes) by describing the components of the NGO legal framework, including:

·         Constitutional protections;

·         Basic “framework” legislation governing the creation, registration and general lifecycle of NGOs;

·         Public benefit legislation;

·         Tax legislation;

·         Customs duties and other fiscal legislation; and

·         Licensing issues for particular activities

Using a summary prepared by staff from the collated responses, the instructor next describes the different organizational forms available in the represented countries.  These likely will include:

·         Foundations

·         Associations

·         Institutes/centers

Finally, the instructor discusses various issues involving NGOs, including:

·         The non-distribution constraint;

·         The general distinction between “public benefit” and “mutual/private benefit” organizations; and

·         Best practices relating to political and economic activities by NGOs.

Judicial Studies Lesson Plan
“Justice in a Market Economy”

June 2000

Day 9- Non-Profit Entities

Internal governance of NGOs

Objective: At the conclusion of the session, participants understand issues relating to the internal governance of NGOs, so that they understand the issues when deciding cases involving NGO internal governance issues.

Format: Lecture

Faculty: One

Audience: All participants

Time: Forty-five minutes

Equipment/materials:

Faculty Preparation:

Materials for Participants:

Participant Preparation:

Description: The instructor covers a variety of topics, including:

·         The basic internal governance structure of associations and foundations;

·         Fiduciary duties;

·         Conflicts of interest;

·         Self-dealing;

·         Use of assets; and

·         Internal reporting.

The CEELI Institute

Judicial Studies Lesson Plan
“Justice in a Market Economy”

June 2000

 
Day 9- Non-Profit Entities

External Supervision of NGO Activities

Objective: At the conclusion of the sessions, participants understand the issues and international best practices relating to the external supervision of NGO activities. 

Format: Small group activity, followed by panel discussion

Faculty: Four

Audience: All participants

Time: One hour and fifteen minutes

Equipment/materials:

Faculty Preparation:

Materials for Participants:

Participant Preparation:

Description: One instructor defines the problem: to develop a scheme of external regulation for NGOs.  The  participants are divided into four groups, each with a faculty facilitator.  Each group is divided into two subgroups: (a) a group of regulators trying to develop a system of external regulation for NGOs, and (b) a group of honest citizens wanting to develop a legitimate NGO.  The two groups negotiate a regulatory scheme which covers the following issues:

·         Activity and management reports by NGOs;

·         Financial reports by NGOs;

·         Monitoring and compliance mechanisms; and

·         Public transparency.

The two groups switch roles after the completion of the first two items.  The regulatory schemes are reduced to writing, and provided to the instructors at the end of the session (forty-five minutes). 

The instructors form a panel with one instructor serving as the moderator, and the other three as commentators.  In addition to discussing the draft plans, the panel introduces international best practices concerning external supervision of NGOs (thirty minutes).

The CEELI Institute

Judicial Studies Lesson Plan
“Justice in a Market Economy”

June 2000

Day 9- Non-Profit Entities

International Law Requirements Concerning the Registration and Involuntary Termination of NGOs

Objective: At the conclusion of the sessions, participants  can articulate international law requirements and international best practices relating to the registration and involuntary termination of NGOs, and describe “public benefit” issues. 

Format: Lecture

Faculty: One

Audience: All participants

Time: One hour and fifteen minutes

Equipment/materials:

Faculty Preparation:

Materials for Participants: hypotheticals

Participant Preparation:

Description: The instructor covers a variety of topics (thirty minutes), including:

·         the relevant provisions of the European Convention on Human Rights, Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights;

·         recent cases arising under the ECHR involving the registration and involuntary termination of NGOs; and

·         “public benefit” issues, including  (a) criteria for public benefit status, (b) benefits of public benefit status, and (c) obligations of public benefit status.

The participants thereafter divide into groups of five, and are given a set of hypothetical cases to decide using these norms (thirty minutes).  The group reconvenes, and the instructor discusses the solution to the hypotheticals.

The CEELI Institute

Judicial Studies Lesson Plan
“Justice in a Market Economy”

June 2000

Day 9- Non-Profit Entities

Registration of a Non-Profit Entity

Objective: At the conclusion of the sessions, participants can understand the problems which can arise in judicial oversight of registration of non-profit entities.

Format:

Faculty:

Audience: All participants

Time: One hour and thirty minutes

Equipment/materials:

Faculty Preparation: Role-playing exercises.  In addition, faculty members should be familiar with the following issues:

a.   Oftentimes judges will identify clear examples of illegitimate petitions by the applicants for NGO registration.  Therefore, it would be their duty to not proceed with the registration but request that the applicants amend their petition in a way which makes the petition compliant with the law.  However, when a judge makes a request of the kind described in a vague way and/or when the judge’s request is not comprehensive and has to be followed by further requests for introducing yet other amendments, the process becomes rather embarrassing to the applicant.  Judges should try to avoid causing such types of problems to applicants.  Judges should be very specific and exhaustive when directing the applicants for registration to remedy areas of non-compliance identified in the petition for registration.

b.    Judges often give in to the impulse that they know the “right way” for accomplishing the results sought by the applicants for registration.  Thus, although the petition is fully compliant with the law, a judge attempts to substitute their own “better” solution for a solution adopted by the applicants.  In such situations, with no legal basis, applicants will find out that the court has taken them down a path which they never intended to follow or, even worse, has imposed on them a result which is undesirable.  Therefore, a judge should interfere with the applicants’ business only when the applicants have petitioned something not allowed by law.  In the latter case, the judge should not try to “amend” the damage but rather refuse to process the petition, state the legal obstacle therefor and allow the applicants to propose their own workable solution.

c.  A judge can be quite brutal in trying to force its views on the applicants.  Since an appeal from a registration decision may take a year or two to get resolved, and speed of registration is usually vital to the applicant, a judge who does not hear arguments or is not willing to listen will take the following position:  “I do not care that you disagree with the way in which I interpret the law.  You either implement my instructions for modifying your petition and I register you immediately, or I issue a final refusal which you are free to appeal to the higher court”.  If a judge is willing to follow the spirit of the registration procedure, the judge should hear the arguments of the applicants concerning why their petition should be satisfied.  In short, a judge should make his or her best efforts to learn about the views of the applicant,  and of the legal and factual grounds for the applicant’s belief that the petition should be satisfied as made.  The registration procedure should be a tool to enhance the process of NGO registration and existence.

Materials for Participants:

Participant Preparation:

Description: Since time is limited, two instructors would be involved in the role-playing, focusing on pre-selected issues.  One instructor would play a hard-nosed judge attempting to frustrate the registration attempts of an NGO founder.  After each vignette, participants would be invited to discuss issues arising during the course of the exercise.