* Case Number: a20110511.1
  * Status: running
  * Claimants: Mario L
  * Respondents: UlrichSchroeter
  * Initial Case Manager: AlexRobertson
  * Case Manager: PhilippDunkel
  * Review Arbitrator: AlexRobertson
  * Appeal Panel Chairperson:
  * Appeal Panel Member
  * Appeal Panel Member
  * Date of Review start: 2014-02-02
  * Date of Review ruling: 201Y-MM-DD
  * Date of Appeal start: 201Y-MM-DD
  * Date of Appeal ruling: 201Y-MM-DD
  * Case closed: 201Y-MM-DD
  * Complaint: Appeal against intermediate ruling of a20110502.1

  * Relief: TBD

Review Before: Arbitrator AlexRobertson (A), Respondent: UlrichSchroeter (R), Claimant: Mario L (C), Case: a20110511.1
Appeal Before Arbitrators (A1) (A2) (A3)

== History Log ==
 . 2013-12-08 (issue.c.o) case [[https://issue.cacert.org/otrs/index.pl?Action=AgentTicketZoom&TicketID=64042 | s20110511.10 ]]
 . 2013-12-08 (iCM): added to wiki, request for CM / A
 . 2013-12-08 (DRO): notes added
 . 2014-02-02 (A) I take case and appoint CM
 . 2014-02-02 (A) Init Mail
 . 2014-02-09 (A) Discovery 1
 . 2014-02-09 (A) Intermediate Ruling 1
 . 2014-03-01 (A) No response to Init mail by requested cut-off date from either (C) or (R)
 . 2014-04-05 (A) Review Completed and appeal allowed.

== Original Dispute, Discovery (Private Part) (optional) ==

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== Discovery 1 ==

 . 2014-02-08 (A)

 {{{
This case is the review stage under DRP 3.4 of a potential appeal against an intermediate ruling in a case that is still currently under arbitration. No actions appears to have taken place in the original case since the appeal was requested.

There are a number of issues that this appeal review will need to consider – but the first one has to be as to whether an appeal can be made against an intermediate ruling before the case is finalised.

Addressing this initial consideration, under Anglo law, it is not that uncommon for a judge to issue an initial ruling – for example placing reporting restrictions on a particular case - before the case is completed. This ruling is binding but an appeal against such a ruling is normally allowable.

DRP allows for a case review process which can then allow “the case to be re-opened or not” – but there is an implication in the phrase that “the case can be re-opened” that this is subsequent to the case being closed. This has the potential for an Arbitrator to “sit on the case” and not issue a final ruling to close it, thereby blocking any appeal. Given the use of Intermediate Rulings by the Arbitration team, it is the opinion of the Review Arbitrator is that this is potentially, in itself, a “clear injustice” and that a review and/or an appeal should be allowable against any ruling at any stage of a case, and not just the final one in a case. 

Given this, the Review Arbitrator issues the following intermediate ruling.
}}}

== Intermediate Ruling 1 ==

A review may be requested (and therefore an appeal may be allowed) against any ruling in an arbitration – however any such review or appeal against an intermediate ruling is limited to only that particular ruling and its direct consequences. Also note that the original ruling remains binding until either it is overturned by a full Appeal Panel or it is amended or rescinded by the original arbitrator.

The Review Arbitrator is presenting to Policy Group appropriate changes to DRP 3.4 to implement this within policy.

Alex Robertson<<BR>>
CAcert Arbitrator<<BR>>
Crewe, UK<<BR>>
9th February, 2014<<BR>>

== Discovery 2 ==
 . 2014-03-01 (A) Neither (C) nor (R) have made any response by the requested cut-off date. 
 {{{
Since neither Claimant nor Respondent have communicated in any manner since the initial mailing and the cut-off date set therein, I intend to progress this case based on the information held.

Alex Robertson
CAcert Arbitrator

On 02/02/2014 11:36, Alex Robertson wrote:
>  5. The next thing I would like both sides to do is to prepare a short
>      email that outlines their viewpoint if they so wish. No longer than a page, please
>      and please let me know if you do not wish to submit such an outline. I would
>      appreciate it if these initial statements are sent to me before 28th February.
}}}

== Grounds for appeal ==

 {{{
I hereby appeal against the ruling of
 dispute a20110502.1 for the following reasons:

 * The case seems to be a standard delete account request, which does
    not relate to or require any system changes.
 * The arbitrator abuses the case to pursue other interests from
    another area he is working (software).
 * There is no need to handle this during arbitration at all. This
    could be requested by any active member as long as it seems
    reasonable. Handling this through arbitration with rulings and
    orders has an unnecessary official character that creates unnessary
    tension between the teams. (Compare language: "I as Arbitrator rule
    that xyz has to be changed to abc." or "We as team decided to do
    something different in future, could you please implement it.") As
    infrastructure team leader I want to avoid this where ever possible.
 * The ruling requests certain configuration changes. It is not the
    arbitrators (nor the teams) job to define implementation details,
    these should be left for the system admins to decide upon
    requirements stated. However, suggestions are fine if discussed with
    others before.
 * Requesting a certain configuration change may introduce errors and
    break the whole systems if an error was overseen. Such a ruling does
    not allow the admin to take any counter measures. So arbitrators
    should always define requirements (maybe accompanied with
    suggestions if available) and leave implementation details up to the
    executing teams.

 As long as no final ruling regarding this appeal is given, I advise my
 team not to (blindly) implement configuration changes requested, even by
 arbitrators order. However, this should not affect the collaboration
 between different teams, even in the questioned case - this appeals
 intention is not to block any progress but to improve how different
 teams work together with the infrastructure teams and to clarify that
 implementation details are not an arbitrators business.

 Furthermore, this appeal and hopefully the ruling can change the
 direction to use arbitration for everything which is not clearly defined
 by any documentation and give the teams some responsibility back in
 getting CAcert forward. Arbitration should be reserved for cases which
 are policy violations or clearly missing policies and not instrumented
 for normal development of CAcert, which can happen outside of
 arbitration cases.
}}}

== Appeal Review ==

 . No input has been received from either party to the dispute, so I am going to process this case on the merits of the existing documentation of the original case and the specific claims made in the appeal.

 . Initially I’m going to examine each of the points raised by the claimant.
----
 1.#1 ''The case seems to be a standard delete account request, which does not relate to or require any system changes ''
  . This certainly seems to be the case for the initial dispute. The system then in place appears to have been capable of handling it without changes.
 1. ''The arbitrator abuses the case to pursue other interests from another area he is working (software)''
  .Abuse is a very strong word as it carries an implication of impropriety. In this case, it appears that the arbitrator was aware of issues that had been raised in other areas and felt that they had to be applied and enforced in the context of this case. Whether such application and enforcement was necessary is a matter of debate below. 
 1. ''There is no need to handle this during arbitration at all. This could be requested by any active member as long as it seems reasonable. Handling this through arbitration with rulings and orders has an unnecessary official character that creates unnessary tension between the teams. (Compare language: "I as Arbitrator rule that xyz has to be changed to abc." or "We as team decided to do something different in future, could you please implement it.") As xxx team leader I want to avoid this where ever possible.''
  . This raises the question of whether this was done and failed, or no-one had got around to it. However, an arbitrator does have the authority to make such a ruling as provided for under DRP 3.6 Remedies – one specific point of which is that he may make changes to policies and procedures. That said, there also appears to have been no need for the changes to be made with any real urgency, so one has to ask why the arbitrator felt it necessary to take such a step in the context of the original case.
 1. ''The ruling requests certain configuration changes. It is not the arbitrators (nor the teams) job to define implementation details, these should be left for the system admins to decide upon requirements stated. However, suggestions are fine if discussed with others before.''
  . Here we enter a “grey area” – teams are ultimately responsible for their areas. An arbitrator is not (and cannot be) required to discuss his ruling(s) with anyone or to get their permission to issue the ruling. The check and balance on an arbitrator is that he/she is open to challenge on the grounds of clear injustice, egregious behaviour or unconscionable Rulings – this review is the first stage of such a challenge.
 1. ''Requesting a certain configuration change may introduce errors and break the whole systems if an error was overseen. Such a ruling does not allow the admin to take any counter measures. So arbitrators should always define requirements (maybe accompanied with suggestions if available) and leave implementation details up to the executing teams.''
  . There is a strong element of validity to this point – changes need to be properly considered, tested and evaluated so as to avoid errors and/or security issues. Such changes should also be tested by multiple people (four eyes principle) before implementation – a detailed implementation via an Arbitrator’s ruling potentially bypasses those checks and can negate the principles under which we operate.
 1. ''As long as no final ruling regarding this appeal is given, I advise my team not to (blindly) implement configuration changes requested, even by arbitrators order. However, this should not affect the collaboration between different teams, even in the questioned case - this appeal intention is not to block any progress but to improve how different teams work together with the infrastructure teams and to clarify that implementation details are not an arbitrators business.''
  . I have some serious issues with this point – the claimant has chosen to disregard (and has instructed his team likewise) an arbitrator’s ruling which is potentially a breach of CCA 3.2 – it is irrelevant that this is an intermediate ruling – it still stands until either successfully appealed or amended/removed by the original arbitrator.
 1. ''Furthermore, this appeal and hopefully the ruling can change the direction to use arbitration for everything which is not clearly defined by any documentation and give the teams some responsibility back in getting CAcert forward. Arbitration should be reserved for cases which are policy violations or clearly missing policies and not instrumented for normal development of CAcert, which can happen outside of arbitration cases.''
  . Arbitration is CAcert’s fallback position – teams do, in general, have responsibilities for their areas. This issue arose – at least in part – because of issues between different teams. This type of conflict is one reason why an arbitrator has effectively unlimited authority – but an arbitrator also has the responsibility to apply that authority wisely. In general, an arbitrator should act “strategically” rather than “tactically” – to adopt a military analogy, he should be saying “it is necessary to capture the hill” rather than specifying how the troops should be deployed. In this case, there seems to be no clear reason why this change to the system could not have been dealt with through the normal routes open to all – possibly with a direction to the appropriate teams that a change needed to be considered.
<<BR>>
 . So where from here?
<<BR>>
----
 . To qualify for a full appeal, the review needs to support the case that at least one of clear injustice, egregious behaviour or unconscionable Ruling has occurred.
 . As a starting point, it may be appropriate to consider what egregious and unconscionable mean.
----
Definitions from oxforddictionaries.com
 
 Egregious :: 
 :: ''Outstandingly bad; shocking:''
  ::  ''egregious abuses of copyright'' 
 :: ''Archaic:  Remarkably good.''
 Unconscionable :: 
 :: ''Not right or reasonable:''
  :: ''the unconscionable conduct of his son'' 
 :: ''Unreasonably excessive:''
  :: ''shareholders have had to wait an unconscionable time for the facts to be established''
----
Considering the individual qualifications for appeal:-
  .
 1. ''Was there “Clear injustice”?''
  . The arbitrator has the authority to make a ruling, and this includes the power to change policy and procedures. Given the level of detail in the arbitrator’s ruling and the lack of immediate relevance to the specific case, it is difficult to see why it was not put through the more normal processes for proposing and implementing system changes where the normal checks and balances would be made, and this would have been a significantly better way to have handled it. If there were problems or disagreements between the teams, this could (if necessary) have been passed to a separate arbitration about the specific issues. In this case there appears to have been some element of “injustice” – but probably short of a level warranting a full appeal in its own right. 
 1. ''Was there “Egregious Behaviour”?''
  . I see the arbitrator as acting in the best interests of CAcert as he saw it. Whether extending this particular case to include the information that the arbitrator had is open to question, but is not, in my opinion, so “outstandingly bad” (sic) as to fall into the category of “egregious”. I would therefore exclude the case of “egregious behaviour” as constituting grounds to progress to a full appeal.
 1. ''Was the ruling “Unconscionable”?''
  . The intermediate ruling given extended well beyond the immediate needs of the arbitration and that extension drew on knowledge from other areas that the arbitrator had involvement with. Whether the claimant had had any access to this other knowledge is not clear, but he should have been (and be) involved in any proposed changes to the system’s infrastructure as it is clearly his area of responsibility. In addition, the removal of the normal checks and balances (and the proper testing) through the normal mechanisms employed within CAcert are effectively bypassed by this ruling. The review arbitrator agrees with the claimant that, in general, arbitrators should define requirements and let the appropriate team handle the implementation unless there is an urgent and/or immediate need to do otherwise. In this particular case, there seems to be no urgent need for the changes and it is strongly arguable that the level of detailed implementation was “unreasonably excessive” (sic) and given this, there is a “prima facie” cause to allow this case to proceed to the next stage as per DRP 3.4 so as to properly determine the outcome of the appeal. That said, there is also no obvious ill intent on the part of either the arbitrator or the claimant – but this is again a matter for a full appeal to determine in due course.
 . So – particularly given that last point - I am ruling that this claim can progress to a full appeal, and I instruct that an appeal panel be formed “according to procedures established by the DRO from time to time” to consider this appeal.

== Review Ruling ==

This claim can progress to a full appeal, and I instruct that an appeal panel be formed “according to procedures established by the DRO from time to time” to consider this appeal.
<<BR>><<BR>>
Alex Robertson<<BR>>
CAcert Arbitrator<<BR>>
Crewe, UK<<BR>>
5th April 2014


== Appeal Ruling ==

== Execution ==

== Similiar Cases ==

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 . CategoryArbitration
 . CategoryArbCaseOthers
 . CategoryArbCaseAppeal