• Arbitrations
• a20150924.1

• Case Number: a20150924.1
• Status: init
• Claimant: Benny Baumann, Reinhard Mutz, Jürgen Bruckner, Marcus Maengel

• Respondent: PhilippDunkel

• initial Case Manager: EvaStöwe - based on DRO decision m20161119.4

• Case Manager: name case manager
• Arbitrator: name arbitrator
• Date of arbitration start: 201Y-MM-DD
• Date of ruling: 201Y-MM-DD
• Case closed: 201Y-MM-DD
• Complaint: Appeal against a20150420.1
• Relief:
  1. Proper sanctioning of the respondent (Eva S.) for actions taken in 4., 7. and 8.
  2. Proper sanctioning of the arbitrator (Philipp D.) for actions taken in 1., 2., 5. and 6.
  3. Revocation of implicit policy changes of 6., 9. and 10.
  4. Invalidate actions of 11. by vindicating Werner D. to return to his position and continue work as SE.
  5. Follow-up of investigations into referenced cases as necessary.

Before: Arbitrator name arbitrator (A), Respondent: PhilippDunkel (R1), Claimant: Benny Baumann (C1), Reinhard Mutz (C2), Jürgen Bruckner (C3), Marcus Maengel (C4), Case: a20150924.1

iCM note: the dispute asks for actions against "Eva S.", but explicitely only names PhilippDunkel as respondent, so based on the dispute only PhilippDunkel would be respondet - this probably woudl be up for review by the Arbitrator

History Log

• 2015-09-24 (issue.c.o): case [s20150924.31]
• 2016-11-20 (iCM): added to wiki, request for CM / A
• 2016-11-20 (iCM): informs C1-4 and R about case

• Link to Arbitration case a20150924.1 (Private Part), Access for (CM) + (A) only

EOT Private Part

Original Dispute

•  To whom it may concern,
  
  We, the claimants of arbitration case a20150420.1, want to file an
  appeal against the ruling by Arbitrator Philipp D. in said case.
  
  This appeal is based on several violations of current policy,
  misbehaviour of the arbitrator, incompleteness of ruled matter, and
  various other shortcomings of the ruling outlined below. Leaving the
  ruling by Philipp D. as it is now, risks to cause severe harm to the
  CAcert community and CAcert Inc.
  
  Based on several recent events (outside the scope of this appeal), and
  based on the general Conflict of Interest both people carry anyway, we
  want to have ensured, neither Philipp D. nor Eva S. being involved in
  this case as iCM, CM or Arbitrator. Also please ensure, that any
  communication related to this case is distributed to all involved
  parties in a timely manner.
  
  Furthermore we'd like to have taken note of DRP 2.2 bullets 1&2 and the
  selection of the jurisdiction which has to be decided case-by-case. We'd
  thus like to ask to handle this case based on the provisions of
  UNCITRAL, and - given all affected parties reside within the European
  Union - local law.
  
  
  To elaborate our case and the ground for filing this appeal (in no
  particular order):
      0. The case a20150420.1 was a dispute for appeal. Philipp D.
  disclaimed the appeal by stating "This case presented a conundrum as its
  content was initially unclear."
      1. The ruling violates the DRP by failing to establish facts, as
  laid out in DRP 2.6 (1) and DRP 3.1 (2)
      2. The ruling violates the DRP by failing to establish the reasoning
  for the conclusions it draws, as required by DRP 3.1 (3)
      3. The ruling fails to handle the full scope of the matter requested
  by the claimants of the original dispute.
      4. The ruling especially fails to handle the requested sanctioning
  of misbehaviour of the respondent presented by the claimants.
      5. The ruling contradicts itself in that it forbids rulings
  adding/removing staff/team members, yet does confirm such an action
  (which violates this provision).
      6. The ruling empowers arbitrators in such a way, that - once
  appointed - there's virtually no chance sanctioning them for
  misbehaviour they do. This contradicts the intention of the claimants
  which sought to increase liability and responsibility of arbitrators for
  their actions, by simplifying taking sanctions against them.
      7. The ruling leaves out key parts of checking of actions ordered by
  the respondent which where part of the dispute filing.
      8. The ruling is lacking to take note of the impudent and egregious
  behaviour of the respondent with the request for a CARS, forcing the
  original Arbitrator in the case to lay down the case, as the requested
  CARS cannot be given if an Arbitrator wants to stay neutral. This clear
  contempt of court has been without sanction. The same CARS has not been
  repeated for Philipp D., thus making this a manipulation by the respondent.
      9. The ruling contains several provisions contradicting the
  Arbitration Act of 1984, updated in 2008, which is based on the legal
  framework of UNCITRAL - and thus violates the very foundation our
  Arbitration at CAcert is built upon.
      10. The ruling in 2b tries to set CAcert's Arbitration upon common
  law and the law of NSW, which makes Arbitration a gamble.
      11. The ruling fails to invalidate actions ordered by the respondent
  on staff matters regarding Werner D.
      12. The Arbitrator of that case rejected to clarify or correct parts
  of his ruling despite being addressed to do so because of errors or
  incompleteness of these.
      13. "Belief" is not a valid method in an arbitration procedure.
      14. The ruling violates the interdiction of self-dealing.
  
  
  To further detail the issues noted above see the following details:
  
  0. Please see the final ruling of
  https://wiki.cacert.org/Arbitrations/a20150420.1 and compare the part
  "Original Dispute" versus the part "Preamble". You may assume that we
  indicated all facts and referred the documents and acts for witness. We
  referenced several dispute cases and presented facts. A dispute against
  the ruling of a dispute is called a "dispute for appeal".
  
  1. In section 2.6 the DRP, last updated on 2014-07-31 states that
  { { {
  The Arbitrator follows the procedure:
  1. Establish the facts. The Arbitrator collects the evidence from the
  parties. The Arbitrator may order CAcert Inc. or Members under
  jurisdiction to provide support or information. The Arbitrator may use
  email, phone or face-to-face meetings as proceedings.
  } } }
  When applying this to the ruling by Philipp D. you find a violation of
  this provision due to the lack of collecting those or inquiring on
  additional details as stated in our policy. While the initial dispute
  filing may have been incomplete in some details it is the responsibility
  of the Arbitrator to collect additional leads and evidence for the case,
  or clarify on things of relevance for the case. This has not taken place
  as no such questions for several aspects of the case were received and
  these subjects have not been elaborated despite being in the clarified
  dispute filing as requested by the initial Arbitrator. No investigation
  on these matter has taken place nor has been documented, thus missing to
  document these even if they were investigated. If necessary proper
  re-filing should have taken place (DRP 1.4).
  
  This is accompanied by DRP 3.1 (2) which states:
  { { {
  The Arbitrator records:
  [...]
  2. The Facts,
  [...]
  } } }
  These are lacking from the ruling, as they aren't even mentioned as the
  starting point for any of the reasoning done. Thus it's hard to follow
  the logic of the ruling as several important assumptions required to
  understand the reasoning are missing, uncertain or requiring further
  explanation to be fully transparent for a layman.
  
  2. Section 3.1 of the DRP states on the topic of Rulings, that
  { { {
  The Arbitrator records:
  [...]
  2. The Facts,
  3. The logic of the rules and law,
  [...]
  } } }
  Despite being asked for the reasoning and the logic leading to the
  ruling, Philipp D. refused to provide such logic. This was documented in
  signed mail on Mon, 13 Jul 2015 14:10:08 +0100 stating:
  { { {
  I am sorry to say that these are the fundamentals of CAcert.
  
  [...]
  
  For now, unless you want to undertake the task of finding all the
  primary documents, you will simply have to trust me that I know what I
  speak of.
  } } }
  This is unacceptable as the DRP clearly says these things are to be done
  by the Arbitrator and need to be comprehensible and reproducible by all
  involved parties, based on the requirement of legal fairness given in
  DRP 2.2 bullet 9.
  
  Lacking these information there is ground to argue on a violation of DRP
  2.6 (3).
  
  3. As the dispute initially was a request for review (appeal) of other
  cases the review to reopen or rectify rulings of those cases would have
  been required to be part of the ruling. Except for one of the cases
  referenced no such review has taken place. In the case where it was
  performed, the actions taken violate DRP 3.4.
  
  Also one of the cases brought to the attention of Arbitration included
  case a20150125.1 being closed and commented on in the dispute queue,
  despite the Arbitrator touching the case had a Conflict of Interest due
  to the dispute's content. The case a20150125.1 was discovered only due
  to the fact that the case's claimant asked Arbitration about this case.
  This case was published on the arbitration list only on 2015-09-09, but
  so far no actions have been taken nor were remedies prepared to avoid
  such behaviour in the future. Failing to declare existing or possible
  CoI is in breach of DRP 1.5, while failing to reopen the case can be
  seen as an breach of DRP 2.2 bullet 9 by stripping the original claimant
  of its rights granted by the DRP.
  
  By furthermore looking at the documentation of a20141024.1 you see that
  it is lacking proper documentation of the allegations against the SE
  which lead to the actions taken by the Arbitrator of that case. This
  violates our principles which include transparency: While this does NOT
  mean pointing fingers it just well means indicating the nature of action
  done by the SE.
  
  4. When looking at the actions ordered by the Arbitrator of the appealed
  case you see several actions contributing to strengthening the
  protections of Arbitrators once they are appointed to their job, yet no
  similar such precautions to compensate for these changes for sanctioning
  misbehaviour of Arbitrators in their jobs. For the Arbitration of CAcert
  to work properly it is crucial for users to build trust in the proper
  working of the system AND that misbehaviour can ordinarily be sanctioned
  without going to extremes. By single-sidedly strengthening the
  protections of Arbitrators against being sanctioned in their office this
  balance is violated and an user falling victim to despotism and
  arbitrariness of Arbitration is at a clear disadvantage to get his
  rights executed. This disadvantage is in clear breach of DRP 2.2 bullet
  9 and our Principles regarding Non-Deception (We disclose a fair and
  balanced story) as well as FAIR Dispute Resolution (Where FAIR also has
  to be read in the literal sense). Failing to provide these guarantees of
  DRP 2.2 bullet 9 and our Principles breaches the possibility to provide
  for a fair resolution of the problem.
  
  This imbalance inevitably leads to a breach of the Non-Discriminatory
  clause of our Principles, as Arbitrators aren't handled similar to other
  teams within CAcert AND because in each concrete case the claimant
  against an arbitrator ALWAYS would be at a disadvantage.
  
  5. One of the questions asked by the claimants was regarding a check of
  whether Arbitrators may decide on staff of other teams. This question
  was given rise as part of reviewing a20141024.1 but has been resolved in
  a contradicting manner: In the ruling by the Arbitrator it is ruled that
  the suspension of an SE was not allowed to be ordered and thus a
  restitutio in integrum would have been required. As this order was
  lacking the ruling implicitly orders (and reinforces) an order which
  itself ruled illegal. This contradiction makes the ruling violate DRP
  2.6 item 3 and DRP 3.1 item 4.
  
  Below the actual ruling Philipp D. goes on to furthermore add:
  { { {
  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.
  } } }
  This clarification implies either:
  a) Arbitration is not independent
  b) Arbitrators should be able to ignore Board and thus the setup for our
  policies.
  While independent Arbitrators are a requirement for integrity,
  impartiality and independent Arbitration, it shades a very mood light on
  the public confidence, to have either of those implications uttered by
  an Arbitrator. Going further these implications alone should suffice for
  tasking OTHER teams with correcting these issues.
  
  Yet the ruling ignores them, which is a different way of "undermining
  the public confidence in the integrity, impartiality and independence of
  Arbitration" nicely demonstrated (by violating, among others, the
  non-discriminatory and non-deceiving provisions of our Principles).
  
  This also contradicts our DRP 1.5, which (while not enforced by the
  provision in itself) opts to enact independence of Arbitrators for their
  cases.
  
  6. See deliberations within 4. for details.
  
  7. The ruling does not reflect any accusations about the abuse of power
  brought up by the claimants. The claim for the abuse of power by the
  respondent is not resulting from a single event but is the result of
  several occurrences over a period of at least 6 months as laid out by
  the claimants. Instead the ruling just quotes that the Arbitrator did
  not see any wrong acting of the respondent against any rules or policies
  in her different officer roles.
  
  Also the ruling ignores the intermixing of the different officer roles
  by Eva S. and the believed authorisation drawn from them. This
  overstepping of roles can e.g. be seen in case a20141022.3 about who
  gets to decide on how support organises its work internally.
  
  The dispute a20141027.2 against the arbitrator of case a20140518.1
  points out where the respondent is not following the rules of CAcert
  Inc. and mixes Community aspects with those of CAcert Inc. As the case
  affected issues within CAcert Inc. it would have been to be handled
  according to the CAcert Inc. statutes, yet was handled by the CAcert
  community rules instead. The arbitrator tried from the very beginning of
  this case to bind CAcert Arbitration to the domestic law of NSW, which
  is **NOT** acceptable. The DRP in 2.3 explicitly states that the
  jurisdiction is to be evaluated on a case-by-case basis. The claimant
  thus always denied to this attempt of this forced binding to NSW law.
  
  In dispute case a20150114.3 the respondent claims that a new dispute
  case needs to be in the dispute queue for at least 24 hours before an
  Arbitrator is allowed to handle this case. The claimant of said case
  himself showed in several other cases that he is not following his own
  claims as can be seen in e.g. a20150823.1.
  
  Regarding dispute a20150125.1 on sending out mails from the webdb
  software regarding bug 649 it was noted that Eva S. told one of the
  claimants in the (regular) software team telephone conference that he is
  not allowed to hand in any disputes regarding software issues. Therefore
  the claimant send his request to a software assessor who placed the
  dispute, adding in the remark that if this prohibition on filing
  disputes has any ground, based that everybody may work with the software
  team and thus everybody should be able to initiate dispute filings (cf.
  DRP 1.1). Furthermore, Eva S. commented on that case directly in the
  dispute queue, before the dispute was made public. This is neither
  following the rules on transparency (cf. Principles) nor is this keeping
  the case balanced (DRP 2.2 bullet 9 + DRP 1.5) and might lead to the
  fact that any arbitrator reading the initial dispute might be influenced
  by her statement she made - even knowing that she has a Conflict of
  Interest (DRP 1.5) in the said case and thus should not have accessed
  the ticket. As the comment is not made public, this violates DRP 2.2
  bullet 9 as well as our Principles regarding fairness of the dispute
  resolution.
  
  If an arbitrator fails to see these kinds of violations, ignores them or
  not even remarks on them, he cannot be taking his job seriously.
  
  8. When the original Arbitrator took on the case he tried to establish
  all the details involved in getting the dispute filing of the claimants
  explained and elaborated in order to be able to make a judged call on
  the matter (DRP 2.2 bullet 11). These beforehand checks and
  clarifications were questioned by the respondent and rejected as "sided"
  (mail by Eva S. on Wed, 10 Jun 2015 02:14:18 +0200):
  
  { { {
  I do accept CCA and DRP but I do not accept Uli as the Arbitrator of
  this case as it is documented within the OTRS (s20150125.148) that it is
  quite likely that he was involved in the creation of the dispute, which
  would be a CoI with the position of the Arbitrator of this case. The DRP
  forbids such a CoI. He also has violated the Arbitration guidelines at
  more or less every possible step, so far. It is unlikely that he would
  handle this case in a unbalanced and fair manner, as the DRP requests.
  
  IF Uli wants to handle this case further, please give a CARS that there
  was no involvement of you in the creation of the dispute at all and that
  you will handle the case unbalanced and fairly regarding both sides.
  This CARS should be easy to give, so I do not think that this is an
  unreasonable request.
  } } }
  
  This request for a CARS can be seen as impudent and egregious behaviour
  as the CARS requested violates the independence of the Arbitrator: If
  the original Arbitrator had given this CARS he would have
  single-handedly disqualified himself as an Arbitrator as he would have
  willingly breached his independence (required by DRP 1.5). Neither did
  the claimant repeat this or a similar request for a CARS for the new
  Arbitrator, nor was this clear contempt of court sanctioned.
  
  9. In the ruling Philipp D. states:
  { { {
  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.
  } } }
  The ruling is based on Act of Settlement which was implemented in 1701
  and fixes the succession to the English crown. The Act was updated a few
  years ago because the crown wants Prince Harry to take over. The Act
  must be accepted by all 16 member states of the Commonwealth. The last
  member to ratify was indeed Australia.
  The history is described e.g. here:
  http://australianpolitics.com/democracy-and-politics/act-of-settlement-1701[..]
  and there
  Act of Settlement: a nakedly discriminatory law
  http://www.theguardian.com/uk/2009/mar/27/act-of-settlement-monarchy-cathol[..]
  
  The ruling is an attempt to bind all members of CAcert to the English
  Crown. This is not acceptable. And also violates our Principles for the
  provision of non-discrimination and legal fairness.
  
  10. In section 2.3 of our DRP the jurisdiction is clarified. While the
  default is suggested to be the law of NSW - as is required for cases
  involving CAcert Inc. - it has to be decided case-by-case based on the
  applicable options. Those options were neither laid out nor allowed to
  be chosen from.
  
  11. The ruling fails to give clear directions as requested by the
  claimants regarding a20141024.1. Details are explained in 4. and 6.
  
  12. While most of the deliberations is covered within 0. some further
  notes are worth to be made as the arbitrator wrote in the "Preamble"
  section:
  { { {
  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.
  } } }
  If he recognises the claim made by the claimants is "unclear" then he
  should clarify the targets with the claimants. He did not make a single
  attempt to do so. Continuing from this point he makes a switch to his
  personal opinion of this case. Such a switch is **NOT** a valid method
  in an arbitration process. Especially as personal opinion must not have
  any influence on the decisions of a judge or a member of a jury. Please
  also note the requirements for rulings to include proper reasoning.
  
  13. A personal opinion is a personal opinion. During an arbitration
  process claimants and respondents may tell their personal opinions. But
  the arbitrator should not express his personal opinion. He should be
  aware of never violating his impartiality.
  He violates his impartiality by writing
  { { {
  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.
  } } }
  But: "truly believe" is **NOT** a valid method in an arbitration procedure.
  
  14. The ruling violates the principal of self-dealing, which means the
  prohibition to act as principal and agent in parallel.
  He wrote:
  { { {
  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.
  } } }
  
  He referred to board motion
  https://community.cacert.org/board/motions.php?motion=m20091206.2 and
  said that this motion should be new interpreted. His ruling pertains
  himself as arbitrator. No arbitrator especially any arbitrator of CAcert
  has the right to rule in such way that he himself gets any benefit out
  of such ruling.
  
  If a representative of any incorporation is allowed to act self-dealing,
  such allowance **must** explicitly be written in an article of the
  statutes of that incorporation. If you do read our statutes then you
  will not find any article allowing any member to act self-dealing.
  
  
  While not every single one of those points might be sufficient in itself
  to warrant sanctions its the sheer continuity and persistence of these
  issues, as well as the unreliability of and contained contradictions
  within decisions made, on a scale of more than 6 months, that makes Eva
  S. hardly suitable as Arbitrator for our community.
  
  This has been laid out in the clarified filing of the appealed case,
  even if not in quite the detail as done here, and thus could have - as
  is one of the tasks for arbitration - been researched without problem.
  No requests for further details have been received by the claimants
  after the change of the Arbitrator, thus while this research has been
  done by the initial Arbitrator it has hardly been done by the one ruling
  the case.
  
  We thus request the following actions to be taken:
      a) Proper sanctioning of the respondent (Eva S.) for actions taken
  in 4., 7. and 8.
      b) Proper sanctioning of the arbitrator (Philipp D.) for actions
  taken in 1., 2., 5. and 6.
      c) Revocation of implicit policy changes of 6., 9. and 10.
      d) Invalidate actions of 11. by vindicating Werner D. to return to
  his position and continue work as SE.
      e) Follow-up of investigations into referenced cases as necessary.
  
  Should you feel the need for further detail or elaboration please get
  back to clarify the matters.
  
  Thank you very much for your considerations and looking forward hearing
  from you.
  
  Yours sincerely,
  The claimants of a20150420.1
  - B. Baumann
  - J. Bruckner
  - M. Mängel
  - R. Mutz

iCM comment: no anonymisation done as all persons are already visible with full name in a20150420.1.

Discovery

iCM note: the dispute asks for actions against "Eva S.", but explicitely only names PhilippDunkel as respondent, so based on the dispute only PhilippDunkel would be respondet - this probably woudl be up for review by the Arbitrator

Elaboration

Ruling

Execution

Related Cases

list of related cases may be incomplete

• CategoryArbitration

• CategoryArbCaseAppeal