Before: Arbitrator AlexRobertson (A), Respondent: UlrichSchroeter (R), Claimant: Mario Lipinski (C), Claimant: CAcert Inc. (C2), Case: a20110310.1

History Log

Original Dispute, Discovery (Private Part)

EOT Private Part

Discovery 1

Intermediate Ruling 1 (confirmed by Supervising-Arbitrator)

Original Dispute

Discovery 2

Intermediate Ruling 2 (confirmed by Supervising-Arbitrator)

Discovery 3

Intermediate Ruling 3 (altered and confirmed by Supervising Arbitrator)

. Since this appeal (like any dispute) ultimately depends on the CCA, and the commitment members of the community take on under the terms of that agreement, I am, without the intention of setting any precedent, going to to treat this appeal as being under the effects of the version of the DRP as referenced in the CCA and as being at http://www.cacert.org/policy/DisputeResolutionPolicy.php (the alleged official master copy!) as at the date of this appeal starting into arbitration (2012-10-28)

. and as modified by the board in the Original Dispute.

. I believe that this approach is actually to the benefit of all concerned in that it avoids the need to find three arbitrators not previously involved with the case (Do we have that many active arbitrators?) but since it means that I can potentially render a "final and binding ruling" on this case, I require that any objections by any party to this intermediate ruling be filed with myself as arbitrator by 22:00 UTC 2012-11-15.

. Should this appeal go forward the decision on which version to use will have to be decided, yet since the appeals process is identical up to the point where a case is actually reopened this decision can be deferred until that decision is reached. (added by Supervising Arbitrator)

Execution 3

Discovery 4

Discovery 4a

Intermediate Ruling 4 (Reviewed and not confirmed by Supervising Arbitrator)

. With regard to the email referenced in Discovery 4A

. Since this appeal is currently underway, this represents an attempt to interfere with the course of a running arbitration, and I therefore rule that this proposal is out of order.

Discovery

Ruling

Discovery

Ruling

I find no evidence of any of clear injustices, egregious behaviour or unconscionable Rulings in the initial case and therefore rule that this case may not proceed to a full appeal!

Action placed on Policy Group - The CCA and related documents need to be updated to allow for the death of a member of the community - preferably regardless of whether or not CAcert is notified.

The issue of the lack of maintainance of the COD controlled policy master documents needs addressing as a matter of some urgency. I have therefore filed a separate dispute a20121101.1 although Policy Group may wish to pick this up prior to that case being heard.

Background.

The original case arose because of the notification of the death of a member.

It was not picked up or processed in a timely manner by “the CAcert system”

A decision to transfer the R/L/O to CAcert Inc. was made.

Reasoning.

In the general case of the death of a member, the original arbitrator has ruled that the Risks, Liabilities and Obligations (R/L/O) fall back on the CACert Inc. as the other party to the CCA contract which seems a reasonable decision. It is also one of the (necessary) corollaries of running a CA - or any other organisation. It should not be an issue if the notification of the death of a member is processed in a sensible timeframe (<14 days!)

The transfer of liability to CAcert Inc. in this specific case was primarily because of the failure of “the system” to process the case to close down the member’s account in a timely manner after the notification was received “so this is CAcert’ s administrative fault.” It is also arguable that this may set a precedent for future cases involving deceased members of the community.

There is a potential risk arising from the original ruling that CACert Inc. could be brought into arbitration in the window between receiving notification of a member’s death and the account being closed. The original arbitrator has recognised this and has stated “This said, I strongly propose to take care about future Dispute filings with notification, that a member deceased. To handle these cases immediately, with an intermediate ruling, a quick arbitration process, so the community keeps protected.”

That said, the risk of such an action is low and arbitrators are (or at least should be!) sensible enough to realise when one of the parties to a case is a dead person represented either directly by his executors or indirectly by some other interested party (such as CAcert Inc. on behalf of the community).

The potential liabilities incurred do not actually change CAcert Inc.’s possible liability - all members (including the legal member CACert Inc.) are limited to a total maximum of 1000 Euros.

In the event of other members dying and CAcert being notified, an arbitration is currently necessary to close the member’s account. It may be necessary for the claimant to be CAcert Inc. as the “other party” in the CAcert Community Agreement since the deceased is not really in a position to request this action. This “close account” arbitration also provides a point at which a further query about actions in that particular case could be raised if the Board (or any other party) has further concerns.

Whilst the Board were very quick to progress a proposal to change the DRP section on appeals to allow for the potential for “conflict of interest”, one wonders why they have not followed the appealed case in a similar manner by proposing (and following through!) changes to the CCA and related documents to Policy Group to allow for the death of a member of the community and therein to clarify what is to happen when the community is notified that a member has died. This is a direction that is still open to them and something that probably needs to be done - we are all likely to die at some point!

From a more pragmatic viewpoint, there is no clear definition of what happens when we are NOT notified when the death of a community member occurs. I would expect such notification to be unusual - CAcert is unlikely to be high in anyone’s viewpoint in processing the affairs of the dead person if it is considered at all.

Obviously the deceased person is not monitoring their primary email and falls foul of CCA 3.5 - but, since they will not respond, how is the “close account” case to proceed. A greater concern is where such a person has made assurances in the past seven years since it is very possible that we will lose the “paper trail” that underpins our web of trust - in a normal “close account” case, the paperwork relating to assurances is expected to be returned to an Arbitrator to be held in the event of any query relating to those assurances. If we are not notified, it is very possible that this paperwork will get lost or destroyed in the closing of the decedent’s affairs.

The non-notified death could also be potentially covered if the CCA were updated to clarify what should be done in this case.

Therefore I place an action on Policy Group to update the CCA and related documents to cater for the death of a community member.

Since this ruling is against the appeal, it transpires that the prior discussions about “which version of the DRP applies” are redundant, although it does leave the issues raised (ie the lack of maintainance of the master policy documents) as a potential problem that needs fairly urgent resolution. To that end, I’ve filed a separate dispute a20121101.1 to get this issue examined and hopefully resolved.

Alex Robertson
CAcert Arbitrator
Crewe, UK
3rd March, 2013

Execution

Similiar Cases

and please add one of the following Topics, delete the rest

Arbitrations/a20110310.1 (last edited 2015-09-09 17:17:14 by UlrichSchroeter)