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V. GOVERNING DOCUMENTS AND OPERATING RULES


Most, but not all, of the WUOs considered in this study have an internal 'governing document', variously described in the legislation as a 'constitution', 'charter', 'regulation', 'a set of by-laws' and 'statute'. None of these expressions are terms of art and the use of one word or another in a specific national context will depend on national practice. Therefore the term 'governing document' is used throughout this study. Usually, an individual WUO gains legal personality through the approval or registration of the governing document, but, this is not always the case: in some jurisdictions, such as England and Wales, there is no separate governing document as the rules relating to the internal operation of WUOs are set out in the legislation and apply to all such organizations.[67].

But in all of the cases considered, including England and Wales, the legislation confers the necessary powers on WUOs to make their own internal 'operating rules'. Such rules can address such issues as voting procedures, water management practices and so forth. Again a variety of terms are used in the legislation for what are described in this study as 'operating rules', including 'rules', 'by-laws' and 'regulations'.

In cases where a WUO is required to have a governing document it is common for the legislation to specify its minimum contents. Thus in Germany article 6 the Federal Water and Land Association Law states that the governing document must as a minimum contain provisions on:

- The name and seat of the Association;

- The task and undertaking, referring to the plans provided such plans have been drawn up under § 5 paragraph 2,

- Association territory

- Membership and membership directory

- Limit of land ownership to be accepted by the association members and any obligations otherwise incumbent upon them,

- Principles underlying the assessment of contributions

- Formation and tasks of association organs

- Association inspection

- Amendments to the by-laws

- Announcements by the Association.

In practice, however, the actual contents of the governing document will go somewhat beyond the bare minimum provisions prescribed in the legislation. After all, the governing document forms the 'constitution' of each WUO and must set out its basic rules of operation.

In a number of countries the legislation also includes a model governing document, often as an Annex or Appendix. The role of model documents in this context raises an interesting question. On one hand a model document is certainly useful for those involved in the establishment of a WUO: in practice few people are likely to have either the ability or the inclination to draft such a document from scratch[68] and an 'approved' model can be a useful tool. On the other hand, when the approved document becomes the only accepted version, such a 'one size fits all' approach can prevent individual WUO participants from being able to design an organization adapted to their own specific needs. There is no clear answer here. On the one hand no-one would seriously argue that English WUOs have not operated successfully over the years notwithstanding the fact that they all follow the same internal model. But this is perhaps because they are all roughly similar in size and function and in any event and in any event English WUOs have existed in their current form for many years. On the other hand it is arguable that problems can arise when the model governing document becomes effectively the only model that can be used, as it may not accord with local needs. This proposition is supported by the variety that is to be found in the governing documents of WUOs, particularly as regards internal institutional arrangements, that are established on the basis of legislation that permits a degree of flexibility.


[67] Provisions on the expenses and proceedings of Internal Drainage Boards are set out in Part II, Schedule 1 of the Land Drainage Act 1991. A similar approach is found in Punjab Province, Pakistan where the internal rules of WUOs are also set out in regulations, see foot note 25 above.
[68] And many practicing lawyers rely to a lesser or greater extent on either their own precedents or published precedents in undertaking any form of drafting exercise.

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