Policy-Discussion

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

Dear Megan,

I cannot resign from being member, because DRP forbids me to do this, while I am party in cases.

But beside of being member I resigned from any activity.

But actually being a member provides two things:

a) right to act on PolG
b) being under arbitartion.

If now arbitration becomes unreliable the later is quite an issue to any member but especially to those who are party in cases.

But there is a third thing that affect members which is the principles which are more or less also expressed in other policies. One of them is to help each other to secure each other. The proposal to revoke CCA was made for protection of all members. Including me.

I had multiple roles for activity, those being Case Manager, Assurer, Software Tester, last named manager of keypersons list and some kind of chosen representative for PolG which may not be called Policy Officer. But I cannot get rid of being a member I did not mean this when I wrote that other mail.

Now, regarding one of the concerning rulings (a20161128.1) there was some update in between. That ruling may not be so much of an issue as I had feared. Actually the ruling arbitrator of that case meanwhile has confirmed that what I believed he had ruled really would have been something that may not be done.

It would have lead to cases where the affected persons would be excluded to be heard. And the ruling arbitrator now confirmed that this may not be possible.

But it does not change the devastating perspective of the other decision in a20160913.1. Which also leads to cases where the affected parties are excluded to participate and even worse respondents are rejected to enter something so that it will be heard by the arbitrator. - If we forbid members to defend themselves before arbitration we are hard pressed to force them into that arbitration. So members now have good arguments to claim before real courts that our arbitration is invalid and has to be ignored.

So now we somehow have two rulings that may or not be conflicting with each other.

Please note: The rulings that I am referring to were NOT decisions against me as person. I'm not trying to avoid an arbitration decision here. I'm addressing crucial issues with arbitration decisions that will affect any member who is party in a case. Actually those rulings can be even understood to be in my favour, if they touch me at all.

I'm currently evaluating the situation for myself some more.

But here an example to explain the situation:

Time stamp 1:

1. case: a20161128.1
Parties are Benedikt against board.
Arbitrator is Lambert.

Lambert decided, that I'm not party of that case. He also ruled that one may appeal a case even if one is not a party of that case if one has a relevant interest to that case. My position so far was that I have a relevant interest in that case.

Based on the ruling in a20110511.1 a case may be appealed as soon as there is a ruling. There was a ruling.

Now let's assume I appeal that case and that the appeal is picked up by arbitrator A.

Time stamp 2:

1. case: a20161128.1
Parties are Benedikt against board.
Arbitrator is Lambert.

2. case: appeal review on a20161128.1
Parties: Eva against Lambert <--- this is what arbitrator of a20160913.1 confirms
Arbitrator A

According to the explanation of the arbitrator in a20160913.1, Eva would be the only one who may claim something here, "as it is just the review". Lambert just has to wait for the decision. He would be forbidden to claim at this time.

Additionally I also would be allowed to file for some actions against Lambert. Regardless of DRP 3.5. <-- this was what the arbitrator of
a20160913.1 allowed (!)

So chances are good that my claim is accepted and the appeal is granted. This leads to:

Time stamp 3:

1. case: a20161128.1
Parties are Benedikt against board.
Arbitrator is Lambert.

2. case: appeal on a20161128.1
Parties: Eva against Lambert <--- this is what arbitrator of a20160913.1 confirms
Appeal panel: Arbitrators B, C, D

Both cases will have the same topic. Only that 2. case probably ALSO would be about punishing Lambert.

So we have two cases on same topic. And I managed to become a party of the case that I wanted to be party of with the very good position that no original party would be able to counter my position. My respondent would be Lambert. Who HAS to be neutral to the case, as he is arbitrator to the same case.

But now probably a case by appeal panel has priority over a normal case. So whatever Lambert rules probably now could be overwritten by decisions in case 2.

So the final decision on the case between Benedikt and board would be in a case where they are not parties.

But even if not. If Lambert would provide the final decision. Can he expect that anybody believes his ruling was done independently? Especially as he also has to face some possible punishment?

By the recent decisions appeals have turned into a nice tool to try to exclude other parties from cases and to damage arbitrators. Lambert has only little chance to survive unscratched in above constellation. While we continue to have DRP 3.5.

How many cases do you think Lambert would want to do afterwards? Could he be expected to rule fairly afterwards, or would you expect that he would lean somewhat into any direction to avoid such experience, again?

Any member could be in the position of Benedikt and board of that example.

Well, now you should ask me why I just don't appeal that ruling that I believe to be as devastating. It already was an appeal review. Can one appeal an appeal review? Should we be able to do so? If yes, then we never will get to a final situation.

And why not bring it up before the appeal panel? Because a) the review is be binding to the appeal panel, b) the case of the appeal panel is not the review case but only the original case and c) there will not be an appeal panel in this case, as the appeal as such was rejected by the review ruling.

"DRP 3.5. Liability

All liability of the Arbitrator for any act in connection with deciding a dispute is excluded by all parties, provided such act does not constitute an intentional breach of duty. All liability of the Arbitrators, CAcert Inc., its officers and its employees (including Case Manager) for any other act or omission in connection with arbitration proceedings is excluded, provided such acts do not constitute an intentional or grossly negligent breach of duty.

The above provisions may only be overridden by appeal process (by means of a new dispute causing referral to the Board)."

[1] https://wiki.cacert.org/Arbitrations/a20160913.1
[2] https://wiki.cacert.org/Arbitrations/a20161128.1
[3] https://wiki.cacert.org/Arbitrations/a20110511.1

Kind regards,
Eva

On 24.05.2017 12:11, Megan Robertson wrote:

Dear Eva

Whatever happened to your "I hereby resign from any further activity in
CAcert" posted to this list 2017-05-22?

Either you're gone or you're still here. Which is it?

Megan

-----Original Message-----
From: cacert-policy-request AT lists.cacert.org
[mailto:cacert-policy-request AT lists.cacert.org] On Behalf Of Eva Stöwe
Sent: 23 May 2017 17:19
To: cacert-policy AT lists.cacert.org
Subject: revocation of CCA

Dear Policy Group,

I hereby propose the following policy decision:

~~~

Resolved that the CAcert Community Agreement (CCA => COD9) is revoked
and terminated according to CCA 3.3 1.

~~~


The reason being some recent ruling with which CAcert Arbitration
decided to ignore legal fairness, threatened independency of arbitrators
and also stepped outside of DRP, in the context of appeal or appeal like
cases.

I will not go in detail in this mail, but it's now established by
arbitration that

- appeals are cases against the arbitrator, none-appealing parties are
excluded

- other reviews about cases are allowed, but only for anybody who is not
original party, those cases are also cases against arbitrators. Those
cases don't require a claim about "clear injustices, egregious behaviour
or unconscionable Rulings" as appeals require. Original parties of the
original case are excluded to become party of those cases, they only
seem to be open for anybody who is not related to the original case, for
whatever reason

- none claim for those cases has to include any requirement of
"intentional or grossly negligent breach of duty". Even as DRP 3.5
requires this. Actually any party who participates in DRP Arbitration
agrees that there will not be liability for the Arbitrator or anybody
else who is handling arbitration cases outside of those cases according
to DRP 3.5. And even more this provision may not be overridden outside
of appeal process.

For none of those decisions exist some reasoning by the arbitrators.
Especially references to DRP 3.5 and the need of independency which
should be protected by DRP 3.5 were ignored by the ruling arbitrators.


The alternative for termination of CCA would be a deep update of DRP.
But this

a) would require some time where we would be in void with the current
situation

b) I doubt that enough energy is left to get there

c) this would not change that arbitration ignores DRP provisions.


So the only realistic alternative for us is to terminate CCA.

It's a very sad step, which I always hoped to avoid. A lot of times this
was the perspective someone was providing and I always fought to create
the option for an alternative. I did it this time, as well. Twice. But I
failed.

I'll try to explain my reasons for this step some more, but this mail
should not get too long.


I ask you to not lightly move the proposal away, just because you don't
like it and want to have CAcert continued.

I was an arbitrator an arbitrator knows that there could be the
situation where the CCA would have to be revoked by a ruling or the root
keys would have to be revoked based on a ruling. Those options are
available by intention. It's to protect the members from even more harm,
if CAcert core becomes un-reliable.

And now we have the situation where we cannot guarantee fair arbitration
cases, any more. Maybe the first instance of the case would be fair, but
that decision is now open to be attacked by any member for any reason
with a case against the ruling arbitrator. So how independent of that
threat will an arbitrator rule? - It's not that we trust or distrust the
arbitrators as such. It's the situation as such that we create for any
member, who don't know about the persons of the arbitrators and whom we
ask to trust this setup.

Believe me, I am aware about the burden that this proposal places on us
all. But it's the option that was created for this situation by
intention. We should not ignore that.

Kind regards,
Eva

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