Policy-Discussion

[Eva Stöwe <eva.stoewe AT cacert.org>]

Dear Marcus,

first: please be clear that you do not post this AS secretary but AS a
member of CAcert community. Because "board" is not part of this group.

second: The Policy on Policy ("6.3 Contributors declare any conflicts of
interest.") requires you to name all possible Conflicts of Interests
with any submission you do to policy group. So you would have to state that
a) you as a member ask for something and
b) that you are in conflict about this because you voted on this as a
member of the board of CAcert Inc.
https://www.cacert.org/policy/PolicyOnPolicy.html

third: for me so far it looks as if Policy Group so far
a) does not agree with board about the need for any changes
b) rejects the interference from the side of board
c) rejects this proposal (it does not have any content at all, as it is
not specific)


But even as there are a lot of issues with you posting this, let's take
a look at what you write.

You asked us to:

>     How can the DRP meet the criteria of UNCITRAL?
>     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?
>     Are the resulting changes auditable?
>

Well, this is a confusing list. EITHER you are right and we HAVE to
adopt UNCITRAL in a specific and concrete way - then all the other
questions are answered. OR you are interested in changing the OTHER
points in a way YOU want to have them claiming that you are backed up by
UNCITRAL.

As far as I read
* the responses of the members on this
* and other lists
* UNCITRAL,
* the website of UNCITRAL,
* the NSW Commercial Arbitration Act, that was linked by board at some
time, which does not apply to us (it is about local associations)
* the Australian international Arbitration Act
* the Australian Association Incorporation Act
* the according NSW Regulations
* and a lot of other documents,
I come to the conclusion that neither Inc nor community has to adopt
UNCITRAL. Actually Australian international Arbitration Act emphasises,
that some points should be differently than UNCITRAL.

A major point where Australian derives from UNCITRAL model is about what
is considered a Conflict of Interests on the side of an arbitrator.
Australian restricts this to anything that really would be changing

Some major points where UNCITRAL and both Arbitration acts agree is that
* one may set up how an arbitrator is selected in the arbitration
agreement and that it then overrides the model law
* an arbitrator of a running arbitration case may not be removed beside
of quite specific situations and in that situation not by one of the
parties.

If you need references, I can provide them.


Anyway, back to my original point:
Either you would be right -  beside of all that I and others have seen
so far - that we have to do it exactly as the model of UNCITRAL states,
then all other of your questions are answered. OR you just want to have
the other questions changed, because YOU do not like how it is set up.

In that case, please be completely clear about my fist point:
You ARE required to name your conflicts of interests. This includes, that
* you and the other acting board members have refused to accept arbitrators
* you and the other acting board members are in conflict of an
arbitration ruling about how an arbitrator can be removed
* you and the other acting board members have declared arbitrators to be
"suspended" from cases where you and or CAcert Inc is involved, without
presenting any reasons for this AND without naming any condition for the
end of the "suspension" - for way over 3 months, now.


> It would be great to see some results until the end of June 2016.

Maybe you should have a look at Policy on Policy again. We need 2-4
weeks for any vote on this. A review of a big policy takes much longer
than 2 months, as the review for CCA did. And there I/we got a lot of
responses, that the pace was much too high for a lot of people to
follow. And it is likely that there is much more disagreement involved
regarding DRP changes.

Actually as far as I see it at the moment, it is quite unlikely to come
to a near consensus about core points for the moment, at all.

So far I only see an about near consensus that there is no current need
to go into this based on what you/board has written so far.

(However I know that at least nearly all arbitrators see a need for
review of the DRP. Actually some work on proposals is already done, on a
quite early status - if you ask me I can show you some more. But it is
probably too early for proposing or discussing in a big group.)

So my request to Marcus or board is: if you want to have this subject
continued, please provide content on your own instead of requesting
others, who do not agree that there is a need at all, to prepare
something arbitrarily, as they probably would not even hit the point
that you see.

And please be specific about your conflicts of interests.


Disclaimer:
Well and to follow my own words:

I am an arbitrator, so I may be affected by any changes of the DRP not
only as a member but also as an arbitrator. Even more I am one of the
two arbitrators whom board calls to be "suspended" - however as the
change of DRP would not apply to that as it was done under current DRP,
it is questionable if there is a conflict of interest on my side with a
future change of the DRP.

Kind regards,
Eva

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