- Case Number: a20121108.1
- Status: closed
- Claimants: Joost S
- Claimants: Ian G
- Respondents: Martin S
Initial Case Manager: AlexRobertson
Case Manager: PhilippDunkel
- Date of arbitration start: 2012-11-09
- Date of ruling: 2013-03-02
- Case closed: 2013-03-02
- Complaint: dispute over assurance
- Relief: TBD
Before: Arbitrator AlexRobertson (A), Respondent: Martin S (R), Claimant: Joost S (C), Ian G (C2) Case: a20121108.1
2012-11-09 (issue.c.o) case s20121108.507
- 2012-11-09 (iCM): added to wiki, request for CM / A
2012-11-09 (A): I take this case as (A) and nominate PhilippDunkel as (CM)
- 2012-11-09 (A): init mail
- 2012-11-10 (A): Email from (C2), Reply to (C2) and Assurance Officer (AO) Copy of init mail to (C2)
- 2012-11-11 (A): Response from (AO)
- 2012-11-15 (A): Response from (R)
- 2012-12-14 (A): email to all parties
- 2012-12-14 (A): Response from (AO)
- 2012-12-17 (A): Request for copy of "assurance form" from (R)
- 2012-12-17 (A): Copy of "form" received from (R)
- 2013-01-13 (A): Mail from (A) to all parties
- 2013-01-13 (A): Response from (R)
- 2013-01-13 (A): Mail from (A) to all parties
- 2013-01-16 (A): Scan of ID Doc received from (C1)
- 2013-03-02 (A): Ruling and closed
Original Dispute, Discovery (Private Part) (optional)
Link to Arbitration case a20121108.1 (Private Part), Access for (CM) + (A) only)
EOT Private Part
- (A) 2012-11-09 (A) init mail
I'll take this case as Arbitrator (Alex Robertson email@example.com ) , the Case Manager is Philipp Dunkel firstname.lastname@example.org and the case number is a20121108.1 The status of the case is recorded at . If you notice any missing or wrong information there feel free to provide us your point of view on it. Like every case this also is opened by some formalities: 1. Since you have created a CAcert account it is assumed that you have accepted the CAcert Community Agreement  and the Dispute Resolution Policy . If you have any reason to believe that you are not bound by them please say so in the answer to this initiating mail. 2. The governing law will be that of NSW, Australia. It is possible to request a change of law, but it is unlikely to be helpful in this case. 3. You each need to notify me if you are seeking legal counsel (a lawyer). This is not recommended. Rather, if you feel the need for help, I can ask an experienced Assurer to assist you. 4. If you feel the case is moving slowly please ask the Dispute Resolution Officer for advice. The current Dispute Resolution Officer is Alex Robertson (email@example.com). 5. The next thing I would like both sides to do if they wish to, is to prepare a short email that outlines their viewpoint. No longer than a page, please! The proceedings of the Arbitration have to be in English. If you have troubles expressing yourself in English we can try to find a translator for you. Finally, please remember: this forum is about sorting out our common difficulties and improving our ability to secure ourselves. Unlike other forums, we will all be required to work together after this Arbitration, so I ask you to maintain a positive and helpful spirit at all times! For the purposes of this arbitration, I intend to follow as precedent the ruling given in a20120115.2 which states “Based on the more general case made by the Assurance Officer with the introduction of "Relaxed Rules" for assurance, I also rule that any assurer can legitimately assure a person regardless of whether the name on the assuree's account tallies exactly with their ID Documentation or not provided 1.the assurer documents exactly the names that were seen on the assuree's ID documents 2.the assurer is convinced that the Account name, the assuree and the documentation all relate to the same individual and that the Account name is reasonable with respect to the assuree's name (If the names are vastly different and particularly if the account name is that of a well-known person, alarm bells should ring in the assurer's mind!) 3.that the Risks/Liabilities/Obligations are disclosed to and understood by the assuree 4.the assurer is satisfied that the assuree accepts the CCA 5.the assurer is convinced that the assuree can be brought into arbitration if needed.” Therefore I specifically ask Martin to confirm as a CARS statement if he believes that the above five conditions are satisfied or not. I require that responses to this mailing are received by myself by 17:00 UTC on 16th November 2012. -- Alex Robertson CACert Arbitrator  http://wiki.cacert.org/Arbitrations/a20121108.1  http://www.cacert.org/policy/CAcertCommunityAgreement.php CAcert Community Agreement  http://www.cacert.org/policy/DisputeResolutionPolicy.php Dispute Resolution Policy
- 1) The assurance may stand.
- 2) Given both the environment and the inexperience of the respondent, I believe that the experienced assurers “around the table” should not have let the assurance proceed in the fashion that it did.
Background to the ruling:
Here are my observations of the information as recorded on the card against the requirements of the CAP:-
“The CAcert Assurance Programme (CAP) form requests the following details of each Member or Prospective Member: “
- • Name(s), as recorded in the on-line account;
- o Present – forenames are handwritten
- o Present – identified by an arrow to the email address
- o Present - handwritten
- o Present – handwritten “CCA OK”
- o Absent – There is the handwritten phrase “Assurance following CAP” so it is arguable that it is implied.
- o Present
“The CAP form requests the following details of the Assurer: “
- • At least one Name as recorded in the on-line account of the Assurer;
- o Absent – but included when entered onto the on-line system.
- o Identity documents checked - present - driving licence o Points given present (I think – handwritten at the bottom of the reverse of the form?) – but certainly included when entered into the on-line system
- o Absent – but implicit by entering the assurance into the on-line system
- o n/a
- o Present
However I note that any variations in the names on the document and against the account need to be highlighted and this has not happened in this particular case. (In this case it is the fact that the recorded information is Joost’s full names whereas the document presented (his driving licence) has his middle name only as an initial.
Overall, and despite the above, my opinion is that this form “passes” as a valid assurance document. Although it does not contain explicit permission to assure the assuree, it is certainly implicit in the document.
Therefore the assurance may stand.
The role of those experiences assurers around the table is perhaps less than ideal; there is no reason why an assurance has to be totally formal - I’ve conducted a few assurances and a lot of Thawte notarisations at pubs - but one needs to be able to focus on what is being done - I’m not convinced that this was the case here - it was “a bit difficult (at dinner, before and between courses) and was prone to errors”
In addition, according to Ulrich,
- • “but from my PoV Martin was far away to pass a blank sheet test.”
- • “Don't remember me fully when Joost asked Martin to do an assurance over Joost - Martin first rejected ... but Joost stressed him, to pass an assurance over him. So at the end Martin accepted to go for it. Joost presented him a business card, wrote something onto the card that I could not read (caused by distance)”
- • “Wytze started stressing to reach the train, but I again didn't heard something about finished assurance or not - Martin left the restaurant with Wytze “
In particular, I am concerned that Joost “put pressure” on Martin to assure him after he had initially declined, and that the other experienced assurers allowed this to happen. This is not “good practice” on Joost’s part. However, I don’t see any intent to deceive or to deliberately do wrong. However it may warrant a note in the assurers handbook to make it clear that this should not be done.