Policy-Discussion

[Alex Robertson <alex-uk AT cacert.org>]

Several points come to mind here....

Firstly, NSW's Association Act lays out a "model consititution" - this 
can either be adopted without change, or may be changed to suit the 
needs of the particular association. These changes can overide some or 
all of the provisions of the model - but it is also assumed that unless 
the changes are made, the provisions of the model constitution apply. 
CAcert Inc.'s constitution is a modified version that has been lodged 
with and (presumably) accepted by the NSW authorities and explicitly 
references our DRP as the method of dispute resolution between CACert 
Inc. members, and between CAcert Inc. as a body (represented by the 
Committee (Board)) and the members of CAcert Inc.

DRP also applies in the wider context of the CAcert community as a whole 
- not just to the members of CAcert Inc.

As such it needs to be reasonably universal. It also needs to operate 
with a minimum of overhead - there are not enough people prepared to act 
as Arbitrators as it is.

Similarly UNCITRAL is a model - most countries (and states) recognise it 
as a starting point for their individual arbitration processes - but 
equally often amend parts to suit their own viewpoints; there is no 
overriding reason to follow it "slavishly".

Regarding Marcus' individual points:-

> How can the DRP meet the criteria of UNCITRAL?
See above - UNCITRAL is a model - we do not have to meet "criteria".

That said, UNCITRAL *may* be a good starting point for (or for 
comparison with) any proposed process we may adopt.

> How to install an arbitrator?
The current process seems to be that potential new arbitrators are 
recommended by an existing arbitrator to Board who confirm the 
appointment. (This certainly was the process followed for the two most 
recent appointments (Arbitrator Stoewe and myself.)

Note that two "heads of power" are involved - it is not just one.

This process could probably do with some sort of formal definition 
however - whether that belongs in DRP is another matter. (see my last 
point at the end of this message)

> How to choose an arbitrator for a dispute case?
DRP defines that currently - the Case Manager selects the arbitrator.

>     How to remove/dismiss an arbitrator from a dispute case?
This is treading on dangerous ground. Anglo legal tradition does not 
allow for this to happen - once a judge starts sitting the only method 
of his removal from a case is some sort of impeachment process.

In particular, this is to avoid the possibility of interference with a 
judicial process - this type of interference is potentially a serious 
criminal offence in most jurisdictions including NSW - section 322 of 
the NSW Crime Act 1900 (if I remember correctly) allows for up to 10 
years imprisonment for this type of offence.

Arbitrator Dunkel laid out that the agreement of two of the heads of 
power (Board/Arbitration/PolGroup) was required to impeach an Arbitrator 
as part of a recent ruling.

> How to remove/dismiss an arbitrator from the pool of arbitrators?
See above

>    Who is the legal body who is responsible for the DRP and the CA?
My understanding is that CAcert Inc. was set up to operate the 
infrastructure of the CA. It does not own the underlying information 
such as the Web of Trust.

DRP is the responsibility of Policy Group. I'd expect policy group to 
bear in mind the legal requirements of such a policy where it overlaps 
with the Association - but the Association always has the option to 
change the rules to adopt a different method of dispute resolution 
between .Inc members and/or Board if it were to be felt that DRP would 
not meet the legal requirements of the Association - this would require 
either an SGM or a special resolution.

> Are the resulting changes auditable?
The processes that exist are auditable.

> It would be great to see some results until the end of June 2016.
Whilst it might be "nice" to see results that quickly, it will take as 
long as it takes - there is no onus on PolGrp to meet any deadline - It 
is considerably more important that PolGrp gets it done correctly.

A couple of additional thoughts that this group might want to consider:-

1) Should the current roles of DRO and PolO be appointments from Board 
or should they be solely by the groups (arbitratation and policy group) 
involved - this is relevant to the concept of separation of heads of 
power. (Neither the current PolO nor the DRO positions should depend on 
the "grace and favour" of another head of power)

2) It might be a good idea to formalize the concept of the separation of 
the heads of power as a new policy - the concept works reasonably well 
in the real world. A new policy could also clarify and document the 
methods of appointment and removal of holders of office and membership 
in each of the heads of power.

Regards

Alex

Attachment: smime.p7s
Description: S/MIME Cryptographic Signature