Review Before: Arbitrator AlexRobertson (A), Respondent: UlrichSchroeter (R), Claimant: Mario L (C), Case: a20110511.1 Appeal Before Arbitrators (A1) (A2) (A3)

History Log

Original Dispute, Discovery (Private Part) (optional)

EOT Private Part

Discovery 1

Intermediate Ruling 1

A review may be requested (and therefore an appeal may be allowed) against any ruling in an arbitration – however any such review or appeal against an intermediate ruling is limited to only that particular ruling and its direct consequences. Also note that the original ruling remains binding until either it is overturned by a full Appeal Panel or it is amended or rescinded by the original arbitrator.

The Review Arbitrator is presenting to Policy Group appropriate changes to DRP 3.4 to implement this within policy.

Alex Robertson
CAcert Arbitrator
Crewe, UK
9th February, 2014

Discovery 2

Grounds for appeal

Appeal Review

  1. The case seems to be a standard delete account request, which does not relate to or require any system changes

    • This certainly seems to be the case for the initial dispute. The system then in place appears to have been capable of handling it without changes.

  2. The arbitrator abuses the case to pursue other interests from another area he is working (software)

    • Abuse is a very strong word as it carries an implication of impropriety. In this case, it appears that the arbitrator was aware of issues that had been raised in other areas and felt that they had to be applied and enforced in the context of this case. Whether such application and enforcement was necessary is a matter of debate below.

  3. There is no need to handle this during arbitration at all. This could be requested by any active member as long as it seems reasonable. Handling this through arbitration with rulings and orders has an unnecessary official character that creates unnessary tension between the teams. (Compare language: "I as Arbitrator rule that xyz has to be changed to abc." or "We as team decided to do something different in future, could you please implement it.") As xxx team leader I want to avoid this where ever possible.

    • This raises the question of whether this was done and failed, or no-one had got around to it. However, an arbitrator does have the authority to make such a ruling as provided for under DRP 3.6 Remedies – one specific point of which is that he may make changes to policies and procedures. That said, there also appears to have been no need for the changes to be made with any real urgency, so one has to ask why the arbitrator felt it necessary to take such a step in the context of the original case.

  4. The ruling requests certain configuration changes. It is not the arbitrators (nor the teams) job to define implementation details, these should be left for the system admins to decide upon requirements stated. However, suggestions are fine if discussed with others before.

    • Here we enter a “grey area” – teams are ultimately responsible for their areas. An arbitrator is not (and cannot be) required to discuss his ruling(s) with anyone or to get their permission to issue the ruling. The check and balance on an arbitrator is that he/she is open to challenge on the grounds of clear injustice, egregious behaviour or unconscionable Rulings – this review is the first stage of such a challenge.

  5. Requesting a certain configuration change may introduce errors and break the whole systems if an error was overseen. Such a ruling does not allow the admin to take any counter measures. So arbitrators should always define requirements (maybe accompanied with suggestions if available) and leave implementation details up to the executing teams.

    • There is a strong element of validity to this point – changes need to be properly considered, tested and evaluated so as to avoid errors and/or security issues. Such changes should also be tested by multiple people (four eyes principle) before implementation – a detailed implementation via an Arbitrator’s ruling potentially bypasses those checks and can negate the principles under which we operate.

  6. As long as no final ruling regarding this appeal is given, I advise my team not to (blindly) implement configuration changes requested, even by arbitrators order. However, this should not affect the collaboration between different teams, even in the questioned case - this appeal intention is not to block any progress but to improve how different teams work together with the infrastructure teams and to clarify that implementation details are not an arbitrators business.

    • I have some serious issues with this point – the claimant has chosen to disregard (and has instructed his team likewise) an arbitrator’s ruling which is potentially a breach of CCA 3.2 – it is irrelevant that this is an intermediate ruling – it still stands until either successfully appealed or amended/removed by the original arbitrator.

  7. Furthermore, this appeal and hopefully the ruling can change the direction to use arbitration for everything which is not clearly defined by any documentation and give the teams some responsibility back in getting CAcert forward. Arbitration should be reserved for cases which are policy violations or clearly missing policies and not instrumented for normal development of CAcert, which can happen outside of arbitration cases.

    • Arbitration is CAcert’s fallback position – teams do, in general, have responsibilities for their areas. This issue arose – at least in part – because of issues between different teams. This type of conflict is one reason why an arbitrator has effectively unlimited authority – but an arbitrator also has the responsibility to apply that authority wisely. In general, an arbitrator should act “strategically” rather than “tactically” – to adopt a military analogy, he should be saying “it is necessary to capture the hill” rather than specifying how the troops should be deployed. In this case, there seems to be no clear reason why this change to the system could not have been dealt with through the normal routes open to all – possibly with a direction to the appropriate teams that a change needed to be considered.



Definitions from oxforddictionaries.com

Egregious

Outstandingly bad; shocking:

egregious abuses of copyright

Archaic: Remarkably good.

Unconscionable

Not right or reasonable:

the unconscionable conduct of his son

Unreasonably excessive:

shareholders have had to wait an unconscionable time for the facts to be established

Considering the individual qualifications for appeal:-

  1. Was there “Clear injustice”?

    • The arbitrator has the authority to make a ruling, and this includes the power to change policy and procedures. Given the level of detail in the arbitrator’s ruling and the lack of immediate relevance to the specific case, it is difficult to see why it was not put through the more normal processes for proposing and implementing system changes where the normal checks and balances would be made, and this would have been a significantly better way to have handled it. If there were problems or disagreements between the teams, this could (if necessary) have been passed to a separate arbitration about the specific issues. In this case there appears to have been some element of “injustice” – but probably short of a level warranting a full appeal in its own right.

  2. Was there “Egregious Behaviour”?

    • I see the arbitrator as acting in the best interests of CAcert as he saw it. Whether extending this particular case to include the information that the arbitrator had is open to question, but is not, in my opinion, so “outstandingly bad” (sic) as to fall into the category of “egregious”. I would therefore exclude the case of “egregious behaviour” as constituting grounds to progress to a full appeal.

  3. Was the ruling “Unconscionable”?

    • The intermediate ruling given extended well beyond the immediate needs of the arbitration and that extension drew on knowledge from other areas that the arbitrator had involvement with. Whether the claimant had had any access to this other knowledge is not clear, but he should have been (and be) involved in any proposed changes to the system’s infrastructure as it is clearly his area of responsibility. In addition, the removal of the normal checks and balances (and the proper testing) through the normal mechanisms employed within CAcert are effectively bypassed by this ruling. The review arbitrator agrees with the claimant that, in general, arbitrators should define requirements and let the appropriate team handle the implementation unless there is an urgent and/or immediate need to do otherwise. In this particular case, there seems to be no urgent need for the changes and it is strongly arguable that the level of detailed implementation was “unreasonably excessive” (sic) and given this, there is a “prima facie” cause to allow this case to proceed to the next stage as per DRP 3.4 so as to properly determine the outcome of the appeal. That said, there is also no obvious ill intent on the part of either the arbitrator or the claimant – but this is again a matter for a full appeal to determine in due course.
  4. So – particularly given that last point - I am ruling that this claim can progress to a full appeal, and I instruct that an appeal panel be formed “according to procedures established by the DRO from time to time” to consider this appeal.

Review Ruling

This claim can progress to a full appeal, and I instruct that an appeal panel be formed “according to procedures established by the DRO from time to time” to consider this appeal.

Alex Robertson
CAcert Arbitrator
Crewe, UK
5th April 2014

Appeal Ruling

Execution

Similiar Cases

Arbitrations/a20110511.1 (last edited 2015-09-09 17:18:08 by UlrichSchroeter)