Before:

Contents

    1. History Log
    2. Original Dispute, Discovery (Private Part)
    3. Original Dispute
    4. preliminary order (ruling) #1
    5. Discovery
    6. Ruling
    7. Final Ruling
    8. Comments
    9. Execution
    10. Related Cases
    11. OTRS tickets
    12. DRP handbook (Arbitration training)
  2. Private Part
    1. Private Part of ...
    2. Original Dispute (Private)
    3. Dispute filing modified
    4. Final Dispute filing modified
    5. Response (R)
    6. (C3) accepts CCA/DRP
    7. (C1) accepts CCA/DRP
    8. (C4) accepts CCA/DRP
    9. (C2) accepts CCA/DRP
    10. Private Discovery

History Log

Original Dispute, Discovery (Private Part)

EOT Private Part

Original Dispute

After speaking with C1 and UlrichSchröter the basic complaint against Respondent is:

 It is alleged that the Respondent has continuously abused and exceeded the powers granted to her by CAcert in a way detrimental to both CAcert generally as well as CAcert Arbitration particularly. This case is filed with the intent to determine if the actions taken do in fact represent abuses and excessions, and if so found determine remedies to prevent the Respondent from doing so in future.

preliminary order (ruling) #1

The nature of the dispute file relates to a member of the arbitration team in role as arbitrator. The arbitration file documentation private part is visible to (R) in this case by default (acl permissions set to arbitration team). The dispute filing hypothesizes that private communications between (A) of this case and one of the other arbitration case participients then (R) becomes true. To not discriminate one party to not read the full communication in this case I hereby rule that (R) should be set to denied access to the private part of this case file (priv/a20150420.1). The public part of this arbitration case file is still visible to all parties.

Frankfurt am Main, 2015-04-23 UlrichSchroeter

Ulrich Schröter found that even the suggestion of not being impartial is one that he cannot accept. He has therefore asked PhilippDunkel to take over this arbitration.

Discovery

Ruling

Dear Mr. Ruedin,

as the arbitrator in the named case I find it highly questionable how you and the president have attained knowledge of the supposed use of supposedly confidential information by the claimant since any documents provided have not been attached to the case-file. Never the less I am glad to answer your inquiry.

The claimants have not used any documentation at all. The claimants have simply asserted the possibility that the respondent has acted in a way that abuses and exceeds her authority as part of their filing.

In accordance with DRP-2.6.1 the arbitrator is charged with establishing the facts. The DRP in this point makes it clear that the arbitrator can in fact order the submission of any documents useful in establishing these facts from any community member including CAcert Inc.

In common law this is generally referred to as a subpoena. The word subpoena derives from the Latin "under penalty" since it is punishable to refuse to furnish documents when so requested. As such the any community member so tasked has no other choice but to furnish the all documents as requested by the arbitrator. Arbitration does not care in which role an individual has access to documents, nor should it. The fact that these persons were capable of providing them to establish the facts is sufficient.

It is therefore entirely irrelevant whose documents were gathered and who provided them. The fact is that the arbitrator has in accordance with the DRP-2.6.1 requested documents to be furnished by several people including the claimants, the respondent, the previous arbitrator, and others. None of these people had a choice in whether they would submit relevant documents and none of them had a choice to decline because of the role in which they had access to these documents.

Your suggestion that these documents reached the public via "dark" means is bordering quite closely to an insult to arbitration. As arbitrator I would also like to point out that your examples are wide of the mark as well. In your examples, it was and data reaching the police and state-attorney not the courts. Arbitration is CAcert's system of justice and as such it's courts. Your examples would have been appropriate if CAcert Inc. would have appointed a person as solicitor-general and documents had been made available to that person triggering a claim. None of this is the case.

This case contains a large portion of politics/bullying/name-calling by all sides. Both the secretary and the president, as well as the directly involved parties would be well advised to hold their respective own councils and refrain from pouring oil on the fire. While I have no wish that this statement be interpreted as an order to silence or anything of the like, I would strongly suggest that all parties and all observers consider whether any statement they make will add anything of any value to the topic at hand.

Best regards,
Philipp Dunkel, Arbitrator

On Mon, 15 Jun 2015 14:37:11 +0200, "Etienne Ruedin" wrote:
> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA256
> 
> CAcert Inc. | P.O. Box 4107 | Denistone East 2112 | New South Wales
> Der Sekret�r des Vorstandes
> 
> Fall a20150420.1
> 
> Sehr geehrter Arbitrator
> 
> Mit grosser Sorge haben der Pr�sident und der Sekret�r von CAcert Inc.
> feststellen m�ssen, dass im genannten Fall seitens eines Kl�gers Unterlagen
> verwendet werden, die sich gar nicht in dessen Besitz befinden d�rften. Es
> handelt sich um einen Kl�ger, der - nach Einwand des Pr�sidenten und
> dokumentiert am 23. April 2015 unter obengenanntem Aktenzeichen - als
> Privatperson klagt und als Beweismittel dem Vernehmen nach interne
> Unterlagen des Vorstandes verwendet, zu welchen er nicht als Privatperson,
> sondern ausschliesslich als Vorstandsmitglied Zugang hat.
> 
> Der Pr�sident l�sst Sie hiermit durch mich anfragen, ob Arbitration
> Unterlagen, welche auf solchen dunklen Wegen an die �ffentlichkeit gefunden
> haben, in Betracht gezogen werden (wie etwa gestohlene Bankdaten in
> Niedersachsen) oder ob diese bei der Beurteilung aussen vorgelassen werden
> (wie etwa polizeilich arretierte Computerdaten mit ungen�gend formuliertem
> Durchsuchungsbefehl in der Schweiz).
> 
> Ich w�re Ihnen f�r eine diesbez�gliche Antwort in den n�chsten Tagen
> dankbar.
> 
> Freundliche Gr�sse
> 
> CAcert Inc.
> Etienne Ruedin
> Vorstandssekret�r.
> 
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Final Ruling

1. Preamble

This case presented a conundrum as its content was initially unclear. The case makes the claim that Eva Stöwe has acted contrary to policy and the interests of the CAcert Community in either her capacity as arbitrator or in her capacity as policy officer or in her capacity as community member. She has allegedly done so by exceeding her authority as well as using her distinct roles and their authority in inappropriate contexts.

The explicit request was made that she be curbed in. This could mean removing her as an arbitrator, removing her as policy officer, both or neither. As this case has to ask how can officers be removed as well as how can arbitrators be removed.

Eva also holds positions in each part of CAcert governance. She is policy officer and therefore an office holder in the executive branch. She is also an arbitrator and as such a member of the judicial branch. CAcert's legislative consists of the policy group, which is an open forum admitting anyone. She has been actively engaged in this group as well and is therefore also part of the legislative. This raises the question of how these branches relate to each other as well as whether there are conflicts of interest that arise therefrom.

Of course this case has also to be concerned with Eva's actual actions. Were her actions against policy or otherwise objectionable in a way suitable to cause this arbitration to consider actions against her. Noting that arbitration could also be abused to harass or embarrass an individual it is also prudent to examine whether this has been the case and potentially sanction the claimants for such behaviour.

2. The relationship of the branches of CAcert governance

CAcert has three branches of governance: the executive in the form of CAcert Inc., the legislative in the form of the policy group and the judicial in the form of arbitration. These branches haven been designed to be entirely independent of each other. Interference of one in the business of the other is against the very basic intention of creating these structures in policy. However there is a system of checks and balances in place to give each a measure of influence over the other two.

  1. Legislative / Policy Group influence – The policy group is charged with creating policies. As such it can control the actions of the other branches by creating policies that they have to adhere to.
  2. Executive / CAcert Inc. influence – To influence policy group CAcert Inc. has a veto on policies where they concern the running of the community. To influence arbitration CAcert Inc. is empowered to appoint arbitrators.
  3. Judicial / Arbitration influence – Arbitration can interpret policies and can through interpretation adjust and fine-tune policies. It also has the judicial power to pass rulings, injunctions and subpoenas which in turn CAcert Inc. is obliged to follow.

2a) Removal of CAcert Inc. officers

The removal of CAcert officers is an exclusive privilege of the CAcert Inc. board. That board in turn is responsible to the community by dint of being elected by CAcert Inc. members that are a subset of CAcert community members.

Arbitration may be able to rule that an action by an officer is contrary to policy and countermand or amend it, but arbitration does not have the the power to remove an officer.

> Ruling: CAcert Inc. officers can only be removed by the board of CAcert Inc.

2b) Removal of an arbitrator

The independence of arbitrators / judges has a long history in common law. In the "Act of Settlement" parliament determined that the crown's justices held their posts for life "on good behaviour": it would take a vote of the House of Commons, the House of Lords, and the concurrence of the Crown itself to impeach a justice.

In the case of CAcert the crown is CAcert Inc. since its role is executive in nature. The house of commons is most closely replicated by the policy group. And the house of lord is most closely like arbitration since it is the only body aside from individual justices that holds some judicial powers.

This aligns very well with the intent behind creating the different branches of CAcert governance and is based on ample precedent.

In this light the board motion claiming the right to remove arbitrators can only be interpreted to mean that rather than any CAcert officer such as the president alone having the power to initiate impeachment actions against a sitting arbitrator, the board reserved this prerogative to the entirety of its members.

> Ruling: An arbitrator can only be removed if all three branches of CAcert governance agree that the bar of acting contrary to "good behaviour" has been met, which means that a wilful act contrary to policy is required.

3. Positions in multiple branches of governance

Through the examination of this case it has become clear that while there might not have been an actual conflict of interest for Eva, the perception has been that her duties as arbitrator and policy officer interfere with each other.

Whether this was in fact the case becomes less important in light of the fact that there is no other supervision than an arbitration to check, supervise and affirm that this was not the case. That is the route the claimants have rightly chosen.

Underlying this issue is whether there can be such a thing as a "conflict of interests in principle", meaning an inherent conflict between agencies. As a matter of fact, such has been described above in the description of the relationship between the branches of CAcert governance.

The three branches of CAcert governance are by design in constant conflict in order to provide a measure of control over each other.

> Ruling: A single individual may not hold active roles or offices in more than one branch of CAcert governance at the same time. > This means that should an arbitrator accept appointment to a CAcert Inc. role, his/her status as an arbitrator is put on sabbatical and he/she may not adjudicate cases or otherwise act as arbitrator for the duration of his/her tenure. > In consequence Eva Stöwe is asked to either be on sabbatical as an arbitrator or resign as policy officer. > Participation in policy group does not cause the same conflict of interest in principle, since it is a democratic egalitarian forum without any special roles. It even allows participation by non CAcert community members and works by rough consensus so that there can be no undue influence by an individual. > This does also not prohibit an arbitrator from taking part in the activities and of CAcert Inc. it solely prohibits taking on actual responsibility within the executive branch.

As a note this arbitrator wishes to express his sincere wish that Eva remain an active member of arbitration, since she has shown an aptitude as an arbitrator. I truly believe Eva can be on invaluable service to CAcert in the role of an arbitrator.

4. Actual acts against policy

Much evidence has been viewed in regards to the specific allegations made by the claimants as well as additional material sought out by arbitration itself. While there is ample evidence for conflict, there is no evidence whatever to suggest that Eva has ever acted against policy.

To the contrary, there are several incidents where she suggests and pushes for an adherence to policy. In fact one of the claims made against her was that she had "threatened with arbitration".

In fact she acted precisely correct. She was threatening to file a complaint, knowing that an arbitrator cannot become active otherwise. To consider this a threat, shows an uncommon lack of understanding of how arbitration works and fits into CAcert governance on behalf of her opponents.

> Ruling: This arbitrator holds that none of the reviewed material has given any indication of an abuse of power or authority nor any violations of policy by the respondent Eva Stöwe. In fact her work as an arbitrator has been exemplary. She has not acted in any evident way contrary to the best interests of CAcert in either her role as arbitrator or policy officer.

5. Abuse by the claimants

While there well may be cases that qualify as harassment, this case is not amongst them. This case can be considered a legitimate attempt to ascertain whether an arbitrator or a CAcert officer have abused or exceeded their authority.

Such cases have an important function in the CAcert governance scheme and should not be discouraged. As such the bar for adjudging abuse needs to be seet exceedingly high.

> Ruling: The claimants acted entirely proper in bringing this case as a tool for investigating and adjudging a possible abuse/excess of powers.

Comments

Due to inquiries by the respondent as well as the case-manager I wish to add these comments in hopes to clarify. 

Officer positions are appointed by the board of CAcert Inc. in a delegation of some of its powers. As such all officers are bound by board instructions. The PolO, as in this case, is thereby the representative of the board to policy group charged with administrative tasks such as running the list and publishing policy decisions, but is firmly part of the executive, since he/she is both appointed as well as removed by board motion. The same holds true for the DRO. The DRO may, but does not have to be an arbitrator, however if he is an arbitrator he has to go on sabbatical for the duration of being DRO. The DRO is the equivalent to the minister of justice, and therefore clearly part of the executive.

The precedent for these issues is to be found in our own CAcert history. There was a decision that being a board member and an arbitrator at the same time was not possible. The same goes for being an agent of the CAcert board that is bound by its motions. There are of course even more precedent cases in other realms of common-law:

There is for example [[https://en.wikipedia.org/wiki/Judicial_review_in_English_law#The_rule_against_bias|The rule against bias]]. Which would preclude an officer to deal with any case where CAcert Inc. is a named participant (including account closures).

And then (just as an example) there is the [[http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges|Code of Conduct for US Judges]] which makes a very similar argument:

> A judge may accept appointment to a governmental committee, commission, ... A judge should not, in any event, accept such an appointment if the judge’s governmental duties would tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary. 

A role as an officer of CAcert Inc. being bound to obey all motions of the CAcert Inc. board, definitely undermines "the public confidence in the integrity, impartiality, or independence of" arbitration.

Execution

As the case is closed and there is nothing "private" in the private part of this case-file, the private part is ordered open to the public. To facilitate this, I have appended the entire private part to the end of this case-file. (Philipp Dunkel, Arbitrator)

a20110310.1

Appeal on case

a20110511.1

Appeal against intermediate ruling of a20110502

a20141024.1

terminate assurer account Bruno

a20140518.1

Maybe exclusion of a member (CAcert Inc.)

a20091118.4

Arbitrator slow

OTRS tickets

DRP handbook (Arbitration training)

Private Part

#acl EvaStöwe: #acl UlrichSchroeter,arobertson:read,write,delete,revert,admin #acl AndreasBäß,AlexanderPrinsier,BernhardFröhlich,LambertHofstra,Mario Lipinski,MartinGummi,NickBebout,SebastianKueppers,PhilippDunkel:read,write

Private Part of ...

Template for new mail

Original Dispute (Private)

Ticket Number: s20150420.98

current state: WIP

From: Juergen Bruckner | CAcert.org
To: support@cacert.org
Signed: Signature verified before!
Subject: Subject: Dispute against Arbitration case 20141024.1 - Block of SE
Attachment: smime.p7s , 4.1 KBytes

Referring to the ruling in arbitration case 20141024.1, concerning the
suspension of support engineers, I request hereby that this decision is
reviewed regarding the accuracy and legality, primarily to determine
whether the arbitrator has hereby not exceeded its powers (missuse of
powers).

Furthermore, I would ask to suspend this ruling 20141024.1 at least
until the inspection is completed.

-- 
Juergen Bruckner
Vice-President of CAcert Inc.
CAcert Assurer, CAcert OrganisationAssurer

CAcert.org - The Community CA

E-Mail: jbruckner@cacert.org
CellPhone: +43.660.5147221
VoIP: +43.720.984221
Web: http://www.cacert.org

Dispute filing modified

Final Dispute filing modified

Response (R)

Part I

Part II

(C3) accepts CCA/DRP

(C1) accepts CCA/DRP

(C4) accepts CCA/DRP

(C2) accepts CCA/DRP

Private Discovery

Arbitrations/a20150420.1 (last edited 2015-09-21 20:11:49 by PhilippDunkel)