Before: Arbitrator Philipp Dunkel (A), Respondents to counter-claim: Reinhard M (RC1), Werner D (RC2), Jürgen B (RC3), Marcus M (RC4), Stefan T (RC5), Felix D (RC6), Ben B (RC7), Peter Y (RC8), Robert C (RC9), CAcert Inc. (RC10) Respondents: Ian G (R, later R1), Dirk A (R2), Claimants: Reinhard M (C, later C1), Werner D (C2), Case: a20150916.1

Contents

  1. History Log
  2. Private Part
  3. Dispute
  4. Discovery
  5. Elaboration
  6. Ruling
  7. Execution
  8. Similiar / Related Cases

History Log

Private Part

EOT Private Part

Dispute

Original Dispute by C1 (Reinhard) against R1 (Ian)

I hereby file a dispute against Ian G[...] because he wrote a defamatory
statement about me.

He wrote in an email send on Wed, 16 Sep 2015 00:27:59 +0100:

"But if the discussion on members' list is anything to go by - I'm not
surprised at concern over Marcus and Werner.  Both of them and 2 others
have posted proposals and other statements that appear to deny CCA, DRP,
PoP.  They've been asked to confirm or deny, but haven't really
addressed concerns.

iang "

It is a defamatory statement that I deny CCA, DRP, PoP.

My relief is that Ian is sentenced to withdraw his statement on the
members list cacert-members@lists.cacert.org immediately.

Kind regards

Parts within [] anonymised.

Dispute by C1 (Reinhard) against R2 (Dirk) (originally in a20150908.1)

> I hereby file a dispute against DirkA[...] as President of CAcert.
>
> During the last board meeting on Sunday evening he alleged that
> especially I do not accept arbitration.
>
> This a lie.
>
> It is proof true that I pointed out in an attachment "reject.pdf" that
> the ruling of P.D.in a20150420.1[1]breaches our DRP and*MUST*therefor be
> revoked immediately.
>
> I request that Dirk withdrawshis statement on the memberslist ASAP!
> He should publish this statement before the coming AGM!
>
>
> The following is an excerpt from the transscript of the board meeting
> last sunday evening.
>
> ...
> [22:31] <dirk>hm ..
> [22:32] <dirk>... if i look at the resolutions for the next AGM ... do i
> read there "adjust arbitration" and "reject current ruling ..."?
> [22:33] <Etienne>Yes, you are right.
> [22:33] <dirk>... do i have the feeling that the signers of this
> proposal do not accept arbitration?
> [22:33] <Etienne>"Honi soit qui mal y pense"
> [22:34] <Guillaume>yes and God bless Am(A): informs CM to issue a ruling for the claims against R1 (Ian G)erica
> [22:34] <dirk>hm ... who signed this proposal?
> [22:35] <Guillaume>British and US Crown?
> [22:35] <dirk>;-)
> [22:35] <Etienne>Dirk, you answered him today at 12:55
> [22:37] <Etienne>Anything more for the AGM? Time is running......
> [22:37] <dirk>nope ... 12:55 was another thread
> [22:38] <dirk>i was acking for the proposal, which resulted in the two
> resolution you already added to the AGM agenda ...
> [22:40] <Etienne>Oh, yes, of course: reinhard, co-signed by benny
> and marcus.
> [22:41] <dirk>of marcus and benny do not accept arbitration ... how can
> we ... how can board nominate them as a teamlead?
> [22:42] <Etienne>We cannot.
> [22:42] <Etienne>It is to sad.
> ...
>
>
> [1] https://wiki.cacert.org/Arbitrations/a20150420.1
>
Parts within [] anonymised.
> --
> mit freundlichen Grüssen/kind regards
>
> Reinhard M[...]

Parts within [] anonymised.

Counter Claim by R1 (Ian)

original counter claim against C1 (Reinhard)

1. a document "Business proposal for coming AGM, here Adjust Arbitration" was sent to members list and was signed by claimant and two others, dated 2015-08-30.

1.a  The document exhorts others to overturn a ruling:

"Our Proposal is:

Adjust Arbitration
a) reject the current ruling a20150420.1 in total.
b) setup a working group to adjust arbitration."


by purporting to be either business item or a special resolution at the Association's AGM.  According to actions and statements made, claimant and others believe that the Association has ability to override the DRP.  For example claimant states on the members list:

"You are always requesting that we should file an appeal.**WE DID!**
How often should we go for an appeal? 10 x? 100 x? More than 1000 x????"

Therefore, I submit that claimant believes and acts as if 'Business proposal' is an appeal.

1.b.  Appeals cannot be submitted to the Association.  Such an appeal must be filed as a dispute in the normal way.  On knowledge or belief, the claimant and others have declined or refused to file the dispute for appeal in the normal way.

This practice of appeal is reserved in DRP.  Especially, the Association has passed all such disputes to the community's DRP.  See my post to members list "How association accepted the DRP and PoP - historical", dated 2015-09-12.

1.b.  the document exorts others to 'adjust' Arbitration.  In similar logic to the above, this is a topic for policy group.  By refusing or declining to open the discussion in policy group, claimants are in effect denying PoP.

1.c.  Therefore, I submit that the claimant believes and acts as if CCA, DRP and PoP are optional.
> Hello Arbitrators,
>
> as a second claimant I file a dispute against Ian G[...] because he wrote
> a defamatory statement about me. This dispute shall be added to the
> arbitration case a20150916.1.
>
> Ian wrote in an email in the mailing list
> cacert-members@lists.cacert.org sent on Wed, 16 Sep 2015 01:27:59 CEST:
>
> > "But if the discussion on members' list is anything to go by - I'm
> > not surprised at concern over Marcus and Werner.  Both of them and 2
> > others have posted proposals and other statements that appear to deny
> > CCA, DRP, PoP.  They've been asked to confirm or deny, but haven't
> > really addressed concerns.
> >
> > iang"
>
> It is a defamatory statement that I deny CCA, DRP, PoP. Really I fully
> adhere to our CCA and all policies as written in our official
> repository.
>
> I only deny formulations and postulations of some members that go beyond
> the written policies. To those I will not agree.
>
> And even if I agree to CCA and policies, it cannot be forbidden that I
> point to deficiencies in our policies, voice them and ask for amendment.
>
> My relief is that Ian is sentenced to withdraw his statement on the
> members list cacert-members@lists.cacert.org as soon as possible.
>
> Kind regards,


2. The Arbitrator in the active case mentioned in 1. above requested confirmation that CCA, DRP and PoP be re-stated by the claimant and others in a CARS.

No such CARS was forthcoming on the list from claimant or others.

This has created the sense that the claimant and others defy or ignore the Arbitrator of the relevant case.  Indeed the Arbitrator by way of reminder posted his own CARS.

As the case is relevant, and the 'business proposal' directly speaks to overturning this same case, the Arbitrator in question has complete jurisdiction over the question of defiance.  It is therefore unlikely to be examined in this case, but it is presented here as confirming evidence of the claims.



3. On knowledge or belief, claimant has ignored an instruction from an Arbitrator in a running case.



4.  Claimant and others cannot plead ignorance or uncertainty.  They are senior members of the community, having undergone substantial training and spent time in serious roles.  They have all in different ways indicated complete understanding of the process.  By filing this dispute, claimant has demonstrated the correct way to file a dispute.

It is therefore submitted that the kindness that is written into DRP to assist newbies, those that are confused, and those that need help cannot apply to claimants and others.


5.  Claimant and others are likely to be on the forthcoming board of the association. As such, their pursuing of this course is intended to create a mandate to overturn a ruling, and to 'adjust' Arbitration.  Their actions are purposeful and willful.  Creation of such a mandate flies directly in the face of the three heads of power as the community has carefully constructed it over many years.

I therefore submit that this dispute should be treated as urgent.  Having members of uncertain adherence to our basic policies contest for board is not a good thing.



6.  In conclusion, I submit that claimant and others are abusing the process.  They are enjoying the ability to file disputes in order to harass and browbeat their opponents.  In contrast they are not themselves following the dictates of policies.  By deliberately bypassing the appeal process, claimants are in effect fermenting a rebellion against the forum of Arbitration and the policy group.  They have created a climate of uncertainty that undermines DRP.



Relief.

As claimant has in effect denied respect and confirmation of DRP, PoP and thus CCA, the CCA between CAcert Inc and claimant should be terminated.

update to counter claim from C1 (Ian G) at 2015-12-13 against claimants and respondents added at that date

I refer to case 20150916.1 and my email of 21st September in which I requested a relief of termination of the CCA with the claimants.

I also refer to the events of the last week originating from the first committee ("board") meeting of the new committee, held on 20151206.

1.  During the board meeting, a private session was held.  Immediately after the private session, the board voted on motions to approve "Parts A, B, C".  There was no explanatory text on this information.

While there is precedent for private meetings, there is no precedent for motions that are not clearly laid out to the members.  I speak from experience in this matter;  I have participated in a few private sessions as a board member in the past, and the motions that were carried were generally open and clear in their import.  Members were able to rely on the motions as issued by the board in service of the members.

Motions that are not clearly laid out in public are unacceptable under our principle of openness and transparency.

2.  Shortly after, it transpired that yourself as Arbitrator and Eva as Arbitrator were denied access to the systems.  While speculative, it would appear that the board has voted in one of "Parts A, B, C" to terminate 2 arbitrators.

This is a breach of our policies (CCA, DRP) and an interference in running cases.  As such not only is it a wildly flagrant breach of our policies and practices, it is almost certainly against the law.  Interference with a forum of dispute resolution is considered to be a crime under the common law because the law can only be served when not interfered with.  This applies as much to administrative and civil courts as it does to criminal courts, and quite probably to arbitration.

3.  In another development, the board announced that it had decided to "conduct an investigation."  Again, speculatively, this might be one of "Parts A, B, C."

While it is not clear what the brief for this investigation is, it does appear that (a) the board intends to retain a lawyer to perform this investigation, (b) the subject matter is an "incident" that involved Eva in the course of her duties as Arbitrator, and (c) there is no stated brief for this investigation.

Whilst the board can probably decide on the merits to conduct whatever investigation it so likes, this one looks to be remarkably close to interfering with a running Arbitration.  There is already process for this, being the appeal as laid out in DRP, so this again is a clear breach of CCA and DRP.  By setting up a secret investigation under secret brief, this also breaches the 4-eyes principle of oversight, as per our Security Policy.

It is plausible that the brief could be narrowly written to not interfere with an Arbitration, but it is also likely that because they have hidden the brief, or have not even properly written the brief, they are likely to trigger events that will be result in interfering with Arbitration.

4.  We have the spectacle that CAcert Inc. has now breached the CCA as well as other policies and potentially laws, but CAcert Inc. has been directed by individuals, being the members of the committee.  Who is responsible, the board as an entity, CAcert Inc., or the individuals serving on the board?

CAcert Inc is the person and CAcert Inc as legal person has breached CCA.  CAcert Inc is to be held primarily responsible.

However, CAcert Inc only acts as its members so decree, by agency of the Board.  The board is not a person, per se, therefore it cannot be named.  The agents that direct the board are the  “members of the committee”.

Under the long-standing tradition of the common law, directors of companies were shielded from the actions of the company.  However, in recent Australian jurisprudence, this has now been overturned in the /James Hardy/ asbestos case.  Directors can be held to account for their doings, and directly so.






Given the egregious nature of the current board, I therefore plead to expand my previous relief, including to the maximum possible under our policies.  Specifically, I plead the following;

a/ that CAcert Inc be named as a counter-respondent in case 20150916.1.
b/ that each member of the committee of CAcert Inc be named as counter-respondent in case 20150916.1, including any members of the duly formed subcommittees, being Ben Ball, Jürgen Bruckner, Robert Cruikshank, Felix Doerre, Marcus Mängel, Stefan Thode, Peter Yuill.
c/ that "Parts A, B, C" be opened up for supervision by Arbitrator,
d/ that the "investigation" be assumed as under supervision of a sitting Arbitrator, either of this case or another duly filed,
e/ that such procedure established such that the committee cannot conduct secret business without oversight of some form,
f/ that the CCA be terminated for each of the counter-respondents.
g/ that where egregious or negligent behaviour be found, the persons be levied the maximum amount allowed in CCA, being €1000.

Dispute by C2 (Werner) against R1 (Ian)

Hello Arbitrators,

as a second claimant I file a dispute against Ian Grigg because he wrote
a defamatory statement about me. This dispute shall be added to the
arbitration case a20150916.1.

Ian wrote in an email in the mailing list
cacert-members@lists.cacert.org sent on Wed, 16 Sep 2015 01:27:59 CEST:

> "But if the discussion on members' list is anything to go by - I'm
> not surprised at concern over Marcus and Werner.  Both of them and 2
> others have posted proposals and other statements that appear to deny
> CCA, DRP, PoP.  They've been asked to confirm or deny, but haven't
> really addressed concerns.
>
> iang"

It is a defamatory statement that I deny CCA, DRP, PoP. Really I fully
adhere to our CCA and all policies as written in our official repository.

I only deny formulations and postulations of some members that go beyond
the written policies. To those I will not agree.

And even if I agree to CCA and policies, it cannot be forbidden that I
point to deficiencies in our policies, voice them and ask for amendment.

My relief is that Ian is sentenced to withdraw his statement on the
members list cacert-members@lists.cacert.org as soon as possible.

Kind regards,

Parts within [] anonymised.

Discovery

Elaboration

Ruling

Preliminary Ruling I: join case a20150908.1

Preliminary: I decided to join case a20150908.1 into this dispute since they are of very similar content, except that the respondent is Dirk. A. This also adds Dirk as respondent to this case. 

Dear All,

Werner D[...] has also filed a substantially similar claim against Ian and requested that his case may be joined.

I agree with his notion that the cases are substantially similar and should be joined. As such I add him as an additional claimant.

Kind regards,
Philipp Dunkel
(Arbitrator)

Ruling I: about claim against R1 (Ian G) issued at 13 Dec 2015 via email

Dear all,

this is the ruling on the claims of libel against Ian Grigg.

The original claim by claimants Reinhard Mutz and Werner Dworak against Ian Grigg was that he had defamed them by his statement:

> But if the discussion on members' list is anything to go by - I'm not
surprised at concern over Marcus and Werner. Both of them and 2 others
have posted proposals and other statements that appear to deny CCA, DRP,
PoP. They've been asked to confirm or deny, but haven't really
addressed concerns.

One fundamental requirement of defamation or libel is that the statements needs to be false. As the counter-claim indeed provides evidence supporting the original statement, as have recent events, it is fair to say that the statement was at least not false and therefore cannot be seen as defamatory. This holds especially since the original statement quoted above does not speak to actual denial of CCA, DRP, PoP, etc. but rather to the appearance of denial.

As such I rule the claim to have failed. Which leaves the counterclaim open for further deliberation.

Regards,
Philipp Dunkel
(Arbitrator)

Ruling II: about claim against R2 (Dirk A) issued at 13 Dec 2015 via email

This is the ruling on the claim brought by Reinhard Mutz and Werner Dworak agains Dirk Astrath for a defamatory statement.

The original claim by claimants Reinhard Mutz and Werner Dworak against Dirk Astrath was that he had defamed them by his statement:

> [22:31] <dirk>hm ..
> [22:32] <dirk>... if i look at the resolutions for the next AGM ... do i read there "adjust arbitration" and "reject current ruling ..."?
> [22:33] <Etienne>Yes, you are right.
> [22:33] <dirk>... do i have the feeling that the signers of this proposal do not accept arbitration?
> [22:33] <Etienne>"Honi soit qui mal y pense"
> [22:34] <Guillaume>yes and God bless America
> [22:34] <dirk>hm ... who signed this proposal?
> [22:35] <Guillaume>British and US Crown?
> [22:35] <dirk>;-)
> [22:35] <Etienne>Dirk, you answered him today at 12:55
> [22:37] <Etienne>Anything more for the AGM? Time is running......
> [22:37] <dirk>nope ... 12:55 was another thread
> [22:38] <dirk>i was acking for the proposal, which resulted in the two resolution you already added to the AGM agenda ...
> [22:40] <Etienne>Oh, yes, of course: reinhard, co-signed by benny and marcus.
> [22:41] <dirk>of marcus and benny do not accept arbitration ... how can we ... how can board nominate them as a teamlead?
> [22:42] <Etienne>We cannot.
> [22:42] <Etienne>It is to sad.

One fundamental requirement of defamation or libel is that the statements needs to be false. As the counter-claim indeed provides evidence supporting the original statement, as have recent events, it is fair to say that the statement was at least not false and therefore cannot be seen as defamatory. Furthermore libel explicitly excludes discussions, where one has to make the assumption that the things said are opinions. A committee meeting, definitely qualifies as such a discussion.

As such I rule the claim to have failed. I hereby dismiss Dirk Astrath from this case.

Best Regards,
Philipp Dunkel
(Arbitrator)

Partial Ruling III: add further respondents to counterclaim

By request of the respondent Ian Grigg I hereby add the following persons to the his counterclaim:

* Jürgen Bruckner
* Marcus Mängel
* Stefan Thode
* Felix Doerre
* Ben Ball
* Peter Yuill
* Robert Cruikshank
* CAcert Inc.

The persons covered under the original counterclaim are:

* Reinhard Mutz
* Werner Dworak

It is hereby ordered, that the above named persons are respondents to the counterclaim brought forward.

Best Regards,
Philipp Dunkel
(Arbitrator)

Partial Ruling IV: abbreviate the initialisation issued at 13 Dec 2015 via email

As participants in a dispute protocol requires:

1. Notification of the Claim
2. Request for confirmation of CCA acceptance
3. Request for confirmation of DRP acceptance

However as the matter at hand explicitly questions whether the named counterclaim respondents do in fact accept CCA or DRP this initialisation process shall be abridged to notification only.

The reason behind asking for explicit acceptance of these policies is to ensure that participants in a dispute are either members of our community, which requires acceptance of these policies, or third parties that never-the-less accept to be bound by DRP and arbitration. Considering that the original claimants defended their position as members of the community by filing a dispute, the claim of acceptance of policies is obvious. However the counterclaim challenges and tasks this forum with determining whether or not the respondents in fact do accept these policies and are therefore part of our community. It seems absurd therefore to ask the question a priori if that is the very thing in doubt. Rather a factual analysis of whether the respondents to the counterclaim actually feel bound by these policies in practice is required.

As such it is ordered to abbreviate the initialisation of this case for the counterclaim respondents to notification only.

Regards,
Philipp Dunkel
(Arbitrator)

Execution

a20101025.1

removal of posts from mailing list

a20140518.1

Maybe exclusion of a member

a20150908.1

dispute against Dirk -> joined into a20150916.1

Arbitrations/a20150916.1 (last edited 2016-05-29 10:53:26 by EvaStöwe)