* 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 [[https://community.cacert.org/board/motions.php?motion=m20161119.4|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: 
    a. Proper sanctioning of the respondent (Eva S.) for actions taken in 4., 7. and 8.
    a. Proper sanctioning of the arbitrator (Philipp D.) for actions taken in 1., 2., 5. and 6.
    a. Revocation of implicit policy changes of 6., 9. and 10.
    a. Invalidate actions of 11. by vindicating Werner D. to return to his position and continue work as SE.
    a. 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

<<TableOfContents(2)>>

== 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 [[Arbitrations/priv/a20150924.1|a20150924.1 (Private Part)]], Access for (CM) + (A) only'''

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== 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.

## You may remove unneeded sections at your discretion...
== 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 ==

|| [[Arbitrations/a20150420.1|a20150420.1]] || [[Arbitrations/a20150420.1|"Dispute against: Block of SE and other HR issues, abuse of authority, assumption of authority"]] ||

list of related cases may be incomplete

----
 . CategoryArbitration
 . CategoryArbCaseAppeal