Policy-Discussion

[Bernd Jantzen <web AT bernd-jantzen.de>]

+1 from my side.
I completely agree with Alex' statements and considerations. And also Eva and
Ian have pointed out similar things in their discussion on the cacert-board 
list
six days ago.

In addition let me stress the following:

DRP is the universal forum for all disputes where members of the wider CAcert
community are involved. If the members of CAcert Inc., i.e. of the association
charged by running CAcert's infrastructure, feel that - due to their being 
bound
by associations' laws in NSW, Australia, they need to comply with further 
needs,
they are free to setup corresponding regulations in the rules of the 
association
(CAcert Inc.). There is not necessarily a need to rewrite DRP just because
requirements for associations in Australia have changed (if at all there is 
such
a need because - as Alex pointed out - UNCITRAL has only model character).

However, apart from being bound by NSW regulations for associations, CAcert 
Inc.
also is bound by its agreement to the CCA to follow DRP for any disputes 
within
the CAcert community. So CAcert Inc. might choose whatever regulations they 
feel
necessary on top of DRP for internal disputes within its own association 
members
or association members and the board. But as soon as the wider CAcert 
community
is touched, CAcert Inc. must follow DRP for dispute resolution. In particular,
CAcert Inc. must recognize Arbitrators' decisions. Otherwise CAcert Inc. 
cannot
be accepted by the community as the association responsable for running 
CAcert's
infrastructure.

On the other hand, Policy Group might well think about rewriting DRP or - as
Alex suggested - adding another policy in order to elaborate in a clearer way
how the three heads of power at CAcert (CAcert Inc. represented by its board,
Policy Group and Arbitration) actually share the power in between them. This
reflects some of Marcus' points:

  * How to install an arbitrator?
  * How to choose an arbitrator for a dispute case?
  * How to remove/dismiss an arbitrator from a dispute case?
  * How to remove/dismiss an arbitrator from the pool of arbitrators?
  * Who is the legal body who is responsible for the DRP and the CA?

Having this clear is especially important when it comes to conflicts such as
board trying to remove Arbitrators or trying to handle disputes outside of 
DRP.
Such a conflict is currently paralyzing CAcert. So a clearer notion of how 
such
conflicts should be handled would help in the resolution of the current and
future conflicts of that kind.

Best regards,
Bernd


Alex Robertson @ 25.03.2016 12:11:
> 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
>

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