Policy-Discussion

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

Hi,

on that matter.

[In bold below I also come to the point to describe that Ians issue was found to be not an issue by arbitrator decision.]

While the arbitrators cannot accept or decline a case before they are selected by a Case Manager (CM), there is another that the DRP installed which possibly is not really used by arbitration. This filter is the question what is a case. It is at Case Manager level:

1.4. Contents

The filing must specify:

• The filing party(s), being the Claimant(s).
• The party(s) to whom the complaint is addressed to, being the Respondent(s). This will be CAcert in the case of requests for support actions. It may be a Member (possibly unidentified) in the case where one Member has given rise to a complaint against another.
• The Complaint. For example, a trademark has been infringed, privacy has been breached, or a Member has defrauded using a certificate.
• The action(s) requested by the filing party (technically, called the relief). For example, to delete an account, to revoke a certificate, or to stop a trademark infringement.

If the filing is inadequate for lack of information or for format, the Case Manager may refile with the additional information, attaching the original messages."

I would say a lot of the cases that are filed and not picked up do not qualify for this. But I was not the (initial) CM of those. And the CMs who handled the cases accepted them.

But it was the reason why multiple cases were not moved out of the wiki, because the process of moving a case into the wiki includes a mail that informs the parties about the case and tells them, that the search for an arbitrator will be started. So a move into the wiki as currently done is more or less an acceptance of the case as one matching DRP 1.4, as the next step is entered (the selection of an arbitrator according to DRP 1.5).

I tried to address this with DRO, which at that time was board (the last one, where Ian was a member).

Including some ideas about how the steps could be changed to match those requirements more. Including documentation about which filings would not have been accepted as cases based on this checks.

The result was, that a motion was issued that any waiting case in the queue of the OTRS has to be moved into the wiki, regardless of any issues, including issues with conflict of interest. And by this DRO ordered that the checks and communication stated in DRP 1.4 had to be skipped.

There were other issues with that motion as well. It caused me to re-sign as arbitrator (one of 3 reasons, but the one that could not be ignored) as it would have forced me into a permanent situation of conflict of interest, which an arbitrator should avoid.

Board realised this then and removed that motion.

Anyway. The idea of DROs motion is clear: Any filing should be added to the list of cases in the wiki. The CM may not do the filter of DRP 1.4 if something is a case. ... It was probably meant as an improvement on documentation, but this at least was the side-effect. Which now added multiple cases where CMs / aribtrators before were sceptical if they would be cases at all to the wiki.

But there is more. There is arbitration statement of ruling arbitrator that the issue Ian describes is not an issue.

Well, I was respondent of such a case that then was picked up. I claimed about the above issues in that case. My claim was ignored. I was told that there would not be  a need to look at my claim at all.

So it seams that accepting anything as a case (in that case an "appeal" without any appeal reason, where the relief did not include a re-opening of the case but included actions against the arbitrator, without claiming for intentional breach of duty by the arbitrator).

I had named multiple issues with DRP 1.4 in my claim, but they were not addressed or checked at ANY level.

Admittedly, this maybe was a case according to DRP 1.4, but then checks of DRP 3.4 (appeal) or DRP 3.5 (liability of arbitrator) would have to be applied. Which was my alternative claim. But also was not done at ANY level.

And again the statement that a claim from respondent in such a case does not have to be heard.

So we have the statement of a ruling arbitrator that the respondent of a case does not have to be heard before a ruling.

By this most of Ians argumentation falls short. This issues is found to be no issue by arbitrator decision.

So before you consider to act on Ians issue, you have to be aware that you are crossing arbitration decisions.

Kind regards,
Eva

On 25.07.2017 14:39, Iang wrote:

Hi all,

One of the unfortunate side-effects of CAcert's Arbitration is that all filings are often treated with the full force, as if they were all really important civil matters.  This is not really scaleable.  Giving all the seriousness of a criminal-jury trial to a lightweight case, or one that just doesn't seem to attract attention, will not work.  It should be clearly seen as a signal to drop the case.  If not, why not?

In DRP it says

If no Arbitrator accepts the dispute, the case is closed with status "declined."

Which should be pretty clear.  If it's not clear enough, perhaps amend DRP?  But let's see what is not clear first.

"If no Arbitrator..." probably means active arbitration.  No point in waiting for the inactive ones to say yes or no, because they are ... inactive.

"...accepts the case..." raises a notification question both to the Arbitrator and back to the DRO or other agent that is responsible for handling this.  If there is good reason to believe ("the reasonable man test" ?) that notification is done perhaps by the active Arbitration list or other means, and nothing has been heard within a time, then we've reached a conclusion - none have accepted the case.

How long is a time?  Well, for small cases, I would say a month.  This was in the minds of the authors when DRP was written.  For anything else, judgement applies, but likely 3 months would suffice for all but the most distressing cases.  Certainly, in no case longer than a year.

The notion that there is a case filed a year later with no arbitrator signals abuse.  We are also about protecting the respondents, and they *must* be given equal protection.  If there is no Arbitrator to respond to, they cannot respond.  Yet it is their right to respond.  This cannot go on for ever, it must be terminated otherwise we are in breach of our principles and the laws of the land.

Then, "the case is closed ..." "  Closing is clear, right?  Shut down, archived, dropped from the public record.  It never received a fair hearing so it must not be allowed to haunt the future.

Finally, "... with status "declined." "  Status "declined" is simply there to indicate it has been closed because it gained no attention from the Arbitrator.  This is a signal that it didn't have much or enough merit.  That is a signal no more, that isn't a judgement.  But it needs to be distinguished from "Dismissed" which literally means "this case has no merit" being a binary.

So, an open question.  Is the situation not clear enough?  Or do we need to amend the DRP?  Either angle is fine.

iang

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