the bitcoin crew could have still set their own rules about forming a board, setting goals, agenda's. but not having to do it by U.S law requirements. but more so by moral and democratic choice of the team to want it set up in such a way.
Considering that Bitcoin is an open source project, anyone can actually modify the client and release updates. It's up to the users to decide whether to adopt the update or not. I think if any local laws were impeding the progression of Bitcoin in some way, an offshore team could then move things forward if needed.
A consortium rather than a foundation sounds pretty interesting and could possibly make better sense.