• Arbitrations
• a20161128.1

• Case Number: a20161128.1
• Status: init
• Claimant: Benedikt H
• Respondent: DRO

• new initial Case Manager: AlexRobertson

• first initial Case Manager: EvaStöwe

• Case Manager: PietStarreveld

• Arbitrator: LambertHofstra

• Date of arbitration start: 2017-02-28
• Date of ruling: 201Y-MM-DD
• Case closed: 201Y-MM-DD
• Short description: Appeal against dismissal of a20150725.1
• Complaint: DRO (which is Board), dismissed a20150725.1, where Board is respondent, this is conflict of interest
• Relief: appeal against the dismissal of a20150725.1

Before: Arbitrator: Lambert H (A), Respondent: DRO (R), Claimant: Benedikt H (C), Case: a20161128.1

History Log

• 2016-11-28 (issue.c.o): case [s20161126.67]
• 2016-11-28 (iCM): added to wiki, request for CM / A
• 2016-11-28 (iCM): notified C, R about case
• 2017-01-17 (iCM): asks other arbitrator to take over role of iCM
• 2017-01-23 (iCM): asks all other arbitrators to take over as iCM
• 2017-01-29 (new iCM): new iCM: tells first iCM that he would take over as iCM
• 2017-01-31 (first iCM): informs other arbitrators about new iCM
• 2017-01-31 (first iCM): informs parties about change of iCM
• 2017-02-20 (CM): pickup of Arbitration Case a20161128.1
• 2017-02-20 (CM): notify Arbitrators of search for Arbitrator of a20161128.1
• 2017-02-20 (Arbitration): reminder 1 to CM about the importance of following the Arbitrator selection procedure properly
• 2017-02-27 (Arbitration): reminder 2 to CM about the importance of following the Arbitrator selection procedure properly
• 2017-02-27 (CM): apologizes for clumsy and confusing initial emails
• 2017-02-27 (CM): select Arbitrator of a20161128.1
• 2017-02-28 (CM): init mailing
• 2017-02-28 (CM): corrected init mailing
• 2017-03-12 (C): replies to init mail, confirms accepting CCA and DRP and outlines viewpoint to A
• 2017-03-17 (A): confirms receiving C's explanation and response to init mail
• 2017-03-19 (Eva): addresses A in role of originally named respondent
• 2017-03-21 (C): expressed his uneasiness about the mail of the originally named respondent
• 2017-03-22 (A): confirms receiving C's email
• 2017-04-04 (A): informs CM that A has no access to the private part of the case
• 2017-04-05 (CM): informs A that A should have access to the private part of the case
• 2017-04-08 (Eva): asks A whether he has received her request
• 2017-04-09 (A): apologizes to Eva that he didn't inform her he was on vacation
• 2017-04-09 (C): acknowledges reception of init mail and agress to points 1 to 3 on behalf DRO (which currently is board)
• 2017-04-12 (A): asks C to further specify the objective of the dispute
• 2017-04-12 (A): replies to Eva
• 2017-04-12 (Eva): asks A on what basis he would exclude original parties from the case
• 2017-04-13 (Eva): provides A with more background on the question asked
• 2017-04-24 (C): summarizes and repeats issues and relieve requested before A
• 2017-04-24 (A): replies to questions raised by Eva
• 2017-04-24 (Eva): asks A for additional explanation on the parties in the case
• 2017-04-24 (Eva): asks A for the opportunity to add a claim to the case
• 2017-04-25 (Eva): has a number of additional questions for A relate to his reply to the first round of questions
• 2017-04-25 (A): explains to Eva that he's still working on the case and asks her to wait for further requests
• 2017-04-25 (Eva): more questions to A about the way the case is handled
• 2017-04-26 (C): asks Eva to refrain from further commenting on this case
• 2017-04-26 (Eva): replies to request of C
• 2017-04-27 (Eva): replies to A and asks why she should remain silent
• 2017-04-28 (Eva): provides additional information and repeats question to A
• 2017-04-29 (Eva): provides more information and repeats question to A
• 2017-04-29 (C): argues Eva's arguments and repeats earlier request
• 2017-04-30 (Eva): replies to C
• 2017-05-01 (Eva): provides more information and repeats questions to A
• 2017-05-06 (Eva): additional questions for A regarding the mail he sent out on 2017-04-24
• 2017-05-10 (A): A: gives ruling on type and scope of dispute and asks DRO to respond to the claim as specified by A

• Link to Arbitration case a20161128.1 (Private Part), Access for (CM) + (A) only

EOT Private Part

Original Dispute

• The DRO (which is Board), dismissed the arbitration case a20150725.1
  with motion m20161119.3, where Board is acting as respondent. In regards
  to an obvious conflict of interest, I appeal against the dismissal of
  named case.

Full dispute and claim by C in reply to init mail

• On November 11, 2016 the committee of CAcert decided to decline a
  running cases with their motion m20161119.3. The case to drop was
  a20150725.1 [1]. The has the title "Harm to swift processing of security
  issue" and was initially handled by Case Manager Ulrich Schröter. The
  Claimants have been the software assessment team, represented by B[...]
  and the support Team, represented by M[...]. The
  Respondents of this Case have been E[...] and the committee of CAcert.
  
  Here one can assume the first conflict of interest (CoI): The committee
  an Respondent of case a20150725.1 rules in m20161119.3 that they decline
  the case.
  
  Furthermore, the committee acts as DRO of the arbitration forum in a
  way, that leads to another CoI: The DRO actively intervenes a running
  case. The DRP does not clarify the role of the DRO, but it seems to be a
  purely administrational (nomination of CMs (1.3 DRP), process definition
  of arbitrator selection (1.5 DRP), process definition of the appeal
  panel (3.4 DRP). My interpretation is backed by the Information about
  the DRO in CAcert's wiki [2]
  
  If the DRO should be allowed to rule into running cases, the committee
  cannot act as DRO as of Philip D's ruling in case a20150420.1 [3] and
  the DRP should explicitly state this.
  
  Thirdly, by reading the motion text of m20161119.3, I doubt that the
  intention was completely objective. The decisions about the process
  conformity of filing the dispute and the interpretation of the CCA
  support my doubts.
  
  Lastly, the motion text of m20161119.3 contains opinions about the case,
  that are legit for arbitrators but not for the DRO as a supportive
  function. The DRO (especially as not being the active arbitrator of
  named case or even arbitrator at all) should not influence an arbitrator.
  
  Taking this into consideration, I hereby ask you L[...], to consider
  
  a) the motion of m20161119.3 as excess of competences of the DRO,
  b) to declare it as null and void,
  c) to define the competences of the DRO in accordance with the DRP,
  d) to re-open the closed case a20150725.1 and ask the arbitrator to take
  care of it again.
  
  While writing this lines, I see, that this case is not an appeal because
  there was no final ruling of an arbitrator in case a20150725.1 and I'm
  not a party involved in named case. However, as a member of CAcert's
  community and the former internal auditor, I have an interest on good
  governance, i.e. the correct execution of power.
  
  If you need any other input from my side for your consideration, I'm
  glad to help you with this.
  
  -- 
  [1] https://wiki.cacert.org/Arbitrations/a20150725.1
  [2] https://wiki.cacert.org/DisputeResolutionOfficer
  [3] https://wiki.cacert.org/Arbitrations/a20150420.1

  [...] parts removed for privacy

Summary of dispute and claim by C in reply to mail from A

• Thank you for addressing this. As described in my response to the
  initial email, I have three issues:
  
  1) A CoI; Board acting as DRO rejects / closes a case where Board is
  party in.
  2) DRO was not acting in compliance with DRP while rejecting / closing
  cases such as a20150725.1.
  3) The motion m20161119.3 as basis of the rejection / closure of cases
  does not sound objective as expected from DRO (but subjective).
  
  I think my issues are quite clearly described in my response to the
  initial e-mail (repeated at the end). If you have dedicated questions
  regarding this mail, the explanation and the relief (points 1-4), I'm
  looking for, please let me know.

Elaboration and Ruling on type of dispute and scope

Elaboration 1

• I was asked to become arbitrator of case a20161128.1. This seemed a
  relative simple case to start. I started with determining what the exact
  scope of the request is. It took me some time to pinpoint what the exact
  issue is. Please let me explain.
  
  The case was originally filed as an appeal to another case, however, the
  claimant (B[...]) was not a party in the original case, so I had to
  do research whether it is possible to appeal to a decision when the
  person requesting an appeal was not a party in the original dispute. I
  discovered this is possible IF the person requesting the appeal was
  originally left out of the dispute and has a vested interest in the case
  itself. The rationale behind this is that IF an outsider could appeal
  without a clear interest in the case, it would block the original
  parties to file another appeal, because an appeal is final. This would
  not be fair to the original parties.
  
  B[...] was not party in the original case and had no role in that
  case. He also cannot claim to have an interest in the outcome of this
  specific case. IF the objective of this dispute is to influence the
  original case (a20150725.1), I advice B[...] to team up with one of
  the original parties. They can then request an appeal.

  [...] parts removed for privacy

Ruling 1

• I therefore rule that this case (a20161128.1) cannot be an appeal for
  the original case (a20150725.1): only parties (Claimant, Respondent,
  Case Manager, Arbitrator) of the original case can request a review, and
  only the arbitrator of a specific case can make decisions that impact
  that specific case.

  [...] parts removed for privacy

Elaboration 2

• So this might look like an easy solution ending this dispute, but it is
  not. The claim of B[...] is that the process was not executed
  according to the policies, and this fact could harm him or other members
  of CAcert's community in a future dispute (his words: " as a member of
  CAcert's community and the former internal auditor, I have an interest
  on good governance, i.e. the correct execution of power ").
  
  The issue here is that B[...] filed this claim both as individual
  member AND as former auditor. However this must be filed by an
  individual member of CAcert. It cannot be in the role of (formal)
  Auditor: the role of auditor is to review specific elements (for
  instance processes or configurations) and report findings to his client
  (board in this case), not enforce in any way a correction of findings.

  [...] parts removed for privacy

Ruling 2

• Based on this analysis I rule that this is not an appeal for the
  original case, but a dispute between Claimant , B[...] as CAcert
  community member, and Respondent, DRO. Since the board is currently
  acting as DRO, Board is the actual Respondent. Board is represented by G[...].
  
  As a result the scope is limited to a dispute between a member of the
  CAcert community and Board/DRO, with the claim that Board/DRO influenced
  a specific arbitration
  
  a) while there was a Conflict of Interest.
  
  b) without being authorized by DRP or other rules of CAcert

  [...] parts removed for privacy

Ruling

Execution

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