The claimant later stated about the second to last relief: "You can ignore it all entirely. It was just a way to couch the attack on the resolutions as not an attack on members."

Before: Arbitrator EvaStöwe (A), Respondent: CAcert Inc. (R) Claimant: Ian G (C), Case: a20151125.1
former additional Respondents: Reinhard M, Jürgen B, Marucs M, Stefan T, Peter Y, Ben B, Robert C, Felix D, Martin G,

Contents

  1. History Log
    1. Interference with case started
      1. normal case actitiy regardless of interference
      2. interference continues
    2. interference seems to be mostly stopped (status of criminal filing remains unknown)
  2. Private Part
      1. EOT Private Part
  3. Original Dispute
  4. Pre-Arbitration activity
  5. Preliminary Discovery
  6. Preliminary Ruling
  7. Intermediate Ruling
  8. CM gives notice to members
  9. Announcement about no replacement of Arbitrator
  10. Intermediate Ruling II (End of Interference)
  11. Follow up Ruling to Intermediate Ruling II (Future of assurances)
  12. Discovery
  13. Deliberation
    1. I. General
      1. 1. material differences between the presentation of the resolution in the business agenda and the actual vote
        1. Special Resolutions
        2. Ordinary Resolutions
        3. Differences between invitation and wiki
        4. Differences between requested wording and notice
        5. notification about change of wording
        6. challenge based on unclear wording
        7. amending of resolutions
      2. 2. not allowed
      3. 3. empty resolutions
      4. 4. Effect of invalidity of single or multiple items to the General Meeting (validity of the meeting)
      5. Summary
    2. II. Identify the relevant invitation
      1. 1. Analysis of motion at 2015-09-27
      2. evaluation of motion
      3. Effect of adjournment on agenda / invitation
      4. What items were part of the agenda?
      5. 2. Analysis of motion at 2015-11-22 to treat 2015-09-27 to not have happened
      6. Comment on two further "related" motions
    3. III. Requested Relief
      1. 0. about the challenge to the resolutions by the claimant
        1. a) check for no delay
        2. b) check for abusive manner
        3. c) relevance of issues for outcome of votes
      2. 1. All Resolutions of the recent AGM be declared null and void where they were not correctly voted upon as presented in the Business call,
        1. a) Board reports about the current situation of support and arbitration up to the actual date
        2. b) "to create a sub committee, staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc."
        3. the last three: "Public Relation Officer", "Event Officer", "Software Team Lead"
      3. 2. that the last resolution heard, "Software Team Lead"", especially be overturned, for the same defect,
      4. 3. that the board be advised immediately that the last resolution is stayed, until this forum has ruled on that last resolution,
      5. 4. that the members be advised in due course that the resolutions be overturned and that they may consider an SGM or other suitable remedy,
      6. 5. that the secretary be advised that only resolutions that make sense be accepted in the future.
  14. Ruling
  15. Execution
  16. Related Cases
  17. Similiar Cases

History Log

Interference with case started

normal case actitiy regardless of interference

interference continues

interference seems to be mostly stopped (status of criminal filing remains unknown)

Private Part

EOT Private Part

Original Dispute

iCM comment: no anonymisation was done, as all names are already presented in the according context in a public documentation, so there is no need for anonymisation within the dispute, especially as this case is about the specific wording of the entered material. - EtienneRuedin was only handling the votebot (but he was assigned that job by the chair because of his role as the secretary within the AGM).

Pre-Arbitration activity

Preliminary Discovery

The following (ordinary) resolutions will be / have been proposed:

Item

Title on Agenda

Call Mail

Discussion

Result

Board reports about the current situation of support and arbitration up to the actual date

Board reports about the current situation of support and arbitration up to the actual date

by Marc Hofmann

Discussion page

Result

I request to create a sub committee, staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc.

Sub committee for transition

by Benedikt Heintel

Discussion

I request to vote a new Public Relation Officer

Public Relation Officer

by Stefan Thode

Discussion Page

I request to vote a new Event Officer

Event Officer

by Stefan Thode

Discussion Page

I request to vote a new Software Team Lead

Software Team Lead

by Stefan Thode

Discussion Page

The following waring was send in the init mail: 

Warning:

Even as it was not requested by the claimant, by examining the issue filed by the claimant, I have found the possibility that this issue could lead to the AGM form 2015-11-22 is invalid, if the decision from the GM at 2015-09-27 is applicable to the invitation for the AGM at 2015-11-22, as the situation may be comparable.

Board was adviced to act accordingly.

As the advice could possibly be misinterpreted the following clarification was added: 

I do not advice board to act as if the AGM would be invalid.

There was no decision about this. On the contrary I only saw the possibility of that result and was not directly able to dismiss it. Before I will decide anything, I have to do some more research, which will include your statements if you are providing any.

What I advice board is to act based on the fact, that you were informed about that possible outcome of this case. If a ruling would be given in that direction it would be good to be prepared.

Preliminary Ruling

1. Based on the request of the claimant, any of the resolutions done at the AGM from 2015-11-22 that were not voted on like they were invited are hereby stalled. This affects all resolutions that were handled at that meeting, especially the resolutions about Officers and Team Leads.

2. Any delay for the execution of a resolution that is caused by this preliminary ruling may not be counted against board or any other person, required to act based on the resolutions.

3. Additionally, no resolution where there are indications that it may be empty or lead to a violation of CAcert Inc. rules, CCA, DRP or any other policy of CAcert may be added to the invitation of a GM by the secretary, until this case is decided. Ihe secretary is allowed to accept them on his own responsibility, for the case that they may be allowed to be added to the invitation of further GMs.

Cologne, 2015-11-30

The preliminary ruling got the following update: 

The preliminary ruling only affects Ordinary and Special Resolutions. Resolutions for the required business elements of an AGM are not affected.

Vienna, 2015-12-01

Additional notes:

Intermediate Ruling

Within the last few days the access at least to the following resources which are necessary for the work as an Arbitrator were removed for me and a fellow Arbitrator (Philipp Dunkel):
 * Wiki-access to the Arbitrator group, including the ability to read or write the private part of arbitration cases, including our own cases
 * Other Wiki special wiki access
 * membership of the arbitration mailing list
 * OTRS access
There may be other sources for which the access was removed as well.

Neither me nor the other affected arbitrator nor at least two of my Case Managers, including the Case Manager of this case, were either heard nor informed about those actions, before they were done.

Both arbitrators are active arbitrators and handling multiple running cases. Both arbitrators are handling cases where dire claims were raised either against CAcert Inc which is represented by board or against at least three board members.

The evidence at this stage points to this actions having been initiated by board, probably in a board motion “under seal”. There is no precedent for board motions under seal and our Security Policy requires to have everything handled in public, if something is not handled in public it has to be done under arbitration oversight. Wherever sealing is mentioned within CAcert policies, there is also a requirement to state the reason for sealing. Board did not answer a public question from a member about the nature of that seal or an arbitration case.

The access was removed shortly after the Arbitrator of this present case (a20151125.1) informed board via a ruling that it may be possible that the Annual General Meeting which installed board may be invalid based on something raised within that case.

The current actions directly interfere with this case. (And other cases - some of them of critical security relevance).

Beside other possible violations, this is a direct violation of
 * CAcert Community Agreement 2.3 which is binding for any CAcert community member as well as CAcert Inc and requires to submit all disputes to Arbitration instead and to assist the Arbitrator of a running case with any reasonable request. To have access to the resources necessary for arbitration work clearly is a reasonable request. [2]
 * Dispute Resolution Policy 2.1 “The Board of CAcert Inc. and the Members of the Community vest in Arbitrators full authority to hear disputes and deliver rulings which are binding on CAcert Inc. and the Members.” [3]
 * Dispute Resolution Policy 3.3, 3.4, 3.5 which declare decisions of an Arbitrator to be binding for all members and CAcert Inc and defines the appeal process to be the (only) way to address issues with the rulings. [3]
 * Security Policy 9.5 which defines that confidentiality or secrecy may only be done under Arbitration oversight. [4]
 * CAcert Inc. statutes 11 which defines “Disputes between members (in their capacity of members) of the association and disputes between members and the association, are to be dealt with in accordance with the association's Dispute Resolution Policy." [5]
 * The ruling in the arbitration case a20150420.1, which defines how an arbitrator may be removed from the list of arbitrators which includes an arbitration ruling as well as a Policy Group decision. [6] 

~~~~~~~~~~

Because of the above reasons I hereby rule:

1. The actions against both arbitrators to remove their access and to declare that they have removed as arbitrators is invalid. It was given without the necessary authority and against the approved processes of CAcert Inc.

2. These acts are an intervention with a running case and an attempt to violate arbitration processes.

3. Any access to the arbitration area for the affected arbitrators is to be restored as soon as possible, by any member who is able to do so.

4. Arbitration is defined to be the oversight and control authority for the critical areas under Security Policy. The same is true for assurances. An interference with an arbitration case or even more an attempt to arbitrarily remove arbitrators from a running case is an attempt to remove the control authority for those areas. If any arbitrator can have access removed just because board / CAcert Inc. is not happy with the decisions of that arbitrator, a control over the security area and by this the private data of our members and the assurance area and by this the validity of assurances cannot be ensured.

5. To prevent further damage the following steps should be taken against any involved person who acted without due protest (for example filing a dispute/notifying the relevant authorities):
a. It has to be assumed that the person does not accept the CAcert Community Agreement and the Dispute Resolution Policy anymore. This leads to this person possibly being out of control of arbitration. This disqualifies the person to provide acceptable assurances or to act under the security policy.
b. All access to infrastructure under the security policy should be removed for those persons.
c. The assurer status for those persons should be removed.

6. This affects all sub-committee members (Reinhard Muntz, Jürgen Bruckner, Marcus Mängel, Stefan Thode, Peter Yuill, Ben Ball, Robert Cruikshank, Felix Doerre) and also at least Martin Gummi who is proven to have removed the access rights in the wiki. All of those affected members are joined to this case directly as respondents.

7. The named members have 24 hours to prove that they are not party to the board’s actions. If this proof is not received, the decision becomes into effect, their access is to be terminated. The confirmation and/or evidence has to be presented before the arbitrator of an accordingly filed case, or the ruling arbitrator of this case.

8. The above security provisions may only be removed by a ruling from an arbitrator of an accordingly filed case, that includes due reasoning.

9. Board, CAcert Inc. and any other member affected by this ruling has to take care that since now no documentation or communication about anything related to the above activities is destroyed.

Further the members of CAcert Inc. are strongly advised to organise a Special General Meeting to replace the board with a board that accepts CAcert Inc. rules and the policies of CAcert and also to review any actions done by the current board.

Vienna, 2015-12-09
Eva Stöwe

[1] http://wiki.cacert.org/Arbitrations/a20151125.1
[2] http://www.cacert.org/policy/CAcertCommunityAgreement.html  CAcert Community Agreement
[3] http://www.cacert.org/policy/DisputeResolutionPolicy.html   Dispute Resolution Policy
[4] http://www.cacert.org/policy/SecurityPolicy.html
[5] https://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/CAcert-Rules%20of%20Association.pdf (or old version http://wiki.cacert.org/Brain/CAcertInc/AssociationRules)
[6] http://wiki.cacert.org/Arbitrations/a20150420.1

CM gives notice to members

Dear Members of CAcert Inc.

I am the Case Manager of a20151125.1 which is one of the cases that has had the access of the arbitrator removed and the arbitrator allegedly suspended.

As CM of the case , I am technically an "officer of the court" under NSW law and have an obligation to report actions that may be criminal

Under NSW law - the governing law of the association - if arbitration is allowed for in the rules of the association, this has the full authority of law - and the consequences of any form of non-conformance are subject to the same laws that apply to more formal legal processes.

Specifically:

1) it is a rule of the association that all disputes are subject to DRP (Rule 11) - by following/attempting to follow alternatives such as the proposed external review, there may be a breach of fiduciay duty by failing to follow the rules if the association. If this is the case, the Board may be jointly and severally personally liable for any incurred costs.

2) Normal legal process does not normally allow for the selection or rejection of court officials - the DRP clearly states that the CM selects the arbitrator. There is no allowance for any choice or challenge of this process by claimant or respondent

3) Board has jointly and severally accepted both CCA and DRP - by failing to follow the rulings of a duly empanelled arbitrator they have broken that acceptance.

4) In respect of 3) there is also an issue of "contempt of court" on the grounds of failure to obey the rulings of duly empanelled arbitrators. This is an offence under NSW law which is punishable by a fine and/or imprisonment.

5) Philipp Dunkel ruled in case a20150420.1 that removal of an arbitrator requires the agreement of all three heads of power to commence any form of impeachment process. There is no allowance for "suspension" of an Arbitrator, and considering that the President and other members of Board have had cases that they did not like the result of, the action of suspension (and possibly other actions has to be considered malicious, particularly in the light of threats made by the current President and others prior to the AGM that installed the current Board. As a further reference, according to the rules of the association (Rules 12 and 13)  the only actions that Board can take directly to discipline a member of CAcert Inc. is the suspension of or expulsion from that membership - this then is open to appeal requiring an SGM.

6) The removal of priveleges (and/or threats thereof) falls into the category of interference with a court official. This is regarded as an extremely serious criminal offence falling under section 322 of the New South Wales 1900 Crime Act and carries a potential sentence of up to 10 years imprisonment. Since it is a criminal act, perpetrators may be liable to arrest and prosecution if AU residents, or if not AU residents, may face extradition to face charges in NSW.

Given the serious nature of these issues - particularly the last one, unless rapid action is taken to rectify the situation, I will have no alternative but to raise this to "higher authorites" including, but not restricted to, the NSW Office of Fair Trading and the relevant prosecution authorities in NSW.

Alex Robertson
CAcert Case Manager/Arbitrator
Crewe UK
2015-12-13

Announcement about no replacement of Arbitrator

Before I enter the matter I should inform you that I have asked the CM to replace me by another arbitrator for this case. After discussing my reasons in appropriate detail, he understood them and their severity. But he asked for further explanations if and why this would be sufficient to hand over this case to someone else. At the end, I had to accept his logic, as it was convincing. Because of this, I finally followed his explicit preference to remain arbitrator of this case.

Intermediate Ruling II (End of Interference)

Findings:
----------- 
1. The current board issued two motions at 2016-04-16 (m20160416.9 [2] and m20160416.10 [3]) related to the interference in this case. The second motion confirms that the actions which lead to the removal of access were null and void. The access was re-installed.

2. By this the interference in this case has successfully ended. Remaining elements from the possible criminal case may effect the arbitrator, claimant and Case Manager, but - as far as known - do not effect the subject/dispute and by this the further course of this case. The persons who claimed the existence of the criminal case have ceased to be  members of the original respondent (and will be released of the case as individual respondents by this ruling).

3. The former members of the (sub)-committee
- all were removed from that posts by the SGM at 2016-04-09
- all have resigned from any security relevant post, if they had any
- all have resigned from special assurance roles, if they had any.

4. None of them, nor Martin have addressed the assumption ruled in the intermediate ruling that they do not accept the CAcert Community Agreement (CCA) [4] and the Dispute Resolution Policy (DRP) [5] any more. However:

a) Robert and Peter may not have been involved or even aware about the actions at all.

b) Some evidence was provided by claimant, that Ben possibly was not aware about what the effect of the motions he agreed to were and that afterwards he was hindered to pay close attention to the effects. He later showed some disagreement with further board-decisions and also probably with the effects of the original motions.

c) The other subcommittee members all votes aye on the original version of m20160408.1 [6] not 24 hours prior to their resignation and removal from board. By this they again approved with the interference. Which regrettably cannot be ignored in the interest of the community.

d) Martin stated in a face to face discussion that he had acted based on a motion (regardless of rulings).

5. There are two other cases who are handling related topics:
a) a20150916.1 [7] - CCA acceptance of at least former sub-committee members (based on order to remove access) 
b) a20151208.1 [8] - order and execution of removal of access (to parts of arbitration area)

I hereby rule:
----------------
1. The interference in this case was successfully ended by the current board, as far as can be determined.

2. It is extremely unlikely that such an interference occurs again by either of the remaining parties.

3. The question if the former board members actually accept the CAcert Community Agreement and Dispute Resolution Policy and any potential consequences, is handled in a20150916.1. Any according points from this case are handed over to the authority of the Arbitrator of that case.

4. Questions regarding the order for and execution of the removal of access is handled in a20151208.1. Because of this the parts regarding Martin should be joined into that case. The same is true for any such order in his direction.

5. Because of above findings, I adjust the intermediate ruling regarding the containment actions like this:
a) The need to further restrict the access to security areas has ended. None of the respondents remain to have a role that requires such access. The board is trusted to handle possible further requests for such access in an appropriate manner even if a20150916.1 or a20151209.1 do not take care of such questions, again.

b) The assurer status of Robert, Peter, Ben and Martin is restored for the time being. Further events gave at least some reason to doubt the original assumption that they may not accept CCA and DRP. There is no reason to assume that they would handle assurances carelessly or ignore rulings for issues with their assurances. The question of their acceptance of CCA and DRP is addressed in other cases and deliberately left open in this ruling.

c) Regrettably the Arbitrator could not find any arguments to restore the assurer status for the following respondents: Reinhard, Jürgen, Marcus, Stefan, Felix. All evidence points to the prior findings in the original intermediate ruling. If a20150916.1 comes to the conclusion that one of those respondents accepts CCA and DRP the according assurer status should be restored. This decision may be adjusted or removed in a20150916.1.

d) The requirement to take care that no documentation or communication is destroyed about anything related to the interference is confirmed. This requirement persists until it is clear that there will be no possible further need to present such documents in any possible legal context.

6. The respondents Reinhard, Jürgen, Marcus, Stefan, Felix, Robert, Peter, Ben and Martin are released from this case.

Eva Stöwe - 2016-05-10

[1] https://wiki.cacert.org/Arbitrations/a20151125.1
[2] https://community.cacert.org/board/motions.php?motion=m20160416.9
[3] https://community.cacert.org/board/motions.php?motion=m20160416.10
[4] http://www.cacert.org/policy/CAcertCommunityAgreement.html CAcert Community Agreement
[5] http://www.cacert.org/policy/DisputeResolutionPolicy.html Dispute Resolution Policy
[6] https://community.cacert.org/board/motions.php?motion=m20160408.1
[7] https://wiki.cacert.org/Arbitrations/a20150916.1
[8] https://wiki.cacert.org/Arbitrations/a20151208.1

Follow up Ruling to Intermediate Ruling II (Future of assurances)

After the Intermediate Ruling II for this case, that was given and send at 2016-05-10, support informed the Arbitrator that some of the former respondents of this case had performed and entered assurances after their assurer status was removed by Intermediate Ruling I in this case. This was done because of a password reset request that was based on such an assurance and because support was unsure how to deal with this. Support then was asked to provide some numbers. About 60 Assurances are affected.

Support than asked if those assurances would have to be revoked. This is a hard decision, as the interest of the assurees for having (reliable) assurances and the interest of the membership to be able to rely on the correctness of assurances has to be brought in line with the assumption that at least three of the assurer were not accepting CCA and DRP at the time when the assurances were done. 

I hereby rule:

The former respondents who assured and entered assurances after Intermediate Ruling I, all were RA-auditors and most of them had further additional roles in the assurance area. By this they were specially trained assurer. There are also no indications that any of them performed assurances carelessly. On the contrary at least two of them were quite active in training others to perform assurances with due care.

Even as for most of them the assumption stands that they did not accept CCA and DRP, it is clear that they also did not regard Intermediate Ruling I to be of any relevance and by this considered themselves to be assurer at the time when they performed and entered those assurances.

There is no reason to assume that they performed those assurances with less care than they performed prior assurances.

Because of this those assurances are accepted for the time being, as long as no further issue is named for them.

This decision may be adjusted by rulings in a20150916.1 or a20151208.1.

The Assurance Officer is tasked to decide if the affected assurees should be informed about the possible issue with those assurances, even as the assurances are accepted by the Arbitrator of this case for the time being.

If the Assurance Officer sees such a need, an according text should be send to those assurees by support.

Eva Stöwe, 2016-11-16

Discovery

As the case is already quite complex, the discovery is moved to a subpage.

The discovery consist of the following points:

  1. CAcert Inc. statutes extracts

  2. original resolution wordings by requesting members

    1. request for additioal topic at AGM by Marc-Oliver H send at 2015-11-06

    2. request for ordinary resolution at AGM by Stefan T send at 2015-09-06

    3. request for ordinary resolution at AGM by Benedikt H send at 2015-09-12

  3. answers from Claimant

  4. Timeline

  5. Notification of Business for Annual General Meeting

    1. For 2015-09-27

    2. For 2015-11-22

  6. some initial questions, regarding this case

A. (extract from statutes) is kept in the main page for better reference.

Deliberation

The claimant based his dispute on the claim that there were systematic faults about how the AGM was performed at 2015-11-22. Therefore it makes sense to address the raised issues in a general, systematic manner, before the specific resolutions are addressed within a discussion of the requested relief.

I. General

The claimant made three different kinds of claims about why votes possibly have been incorrect:

  1. material differences between the presentation of the resolution in the business agenda and the actual vote
  2. resolutions that are against the statutes by overreaching the allowed power in an egregious way
  3. empty resolutions "that do not make any sense"

Further the following question has to be addressed:

  1. What is the effect of invalidity of single or multiple items to the General Meeting

1. material differences between the presentation of the resolution in the business agenda and the actual vote

We have to distinguish between special resolutions and ordinary resolutions.

Special Resolutions

For special resolutions the CAcert Inc. statutes define in rule 32: "[...] of which at least 21 days' written or digitally signed email notice specifying the intention to propose the resolution as a special resolution was given in accordance with these rules, [...]"

Even if in theory one could meet this requirement by only describing the resolution quite well, it would be hard to do this without actually providing the special resolution with the notification of the business agenda [later called also "invitation"] .

For any relevant situation we have to assume that the statutes require that special resolutions are provided with the invitation, in the way how they are later voted on.

The wording of special resolutions cannot be changed in a material manner after the invitation is send. (An exception are updates to the invitation within the allowed time frames.)

Non-material minor changes (and by this allowed) would be fixing of typos or grammar or a slight reordering of words so that the resolution can begin with "Resolved that ...", as long as this does not change the meaning of the resolution or parts of it.

Ordinary Resolutions

==> For any material vote, a member has to be able to identify and decide on the possible alternatives for that vote prior to the meeting.

This is only possible, if there is no major difference between the material provided with the invitation and the votes that are done, later.

However, this does not necessarily require that the exact wording of the resolution is provided in the invitation. But it requires that no material change is done to any named alternative which is provided with the notification.

While such options are possible, they should be used carefully. They are open for challenge - as done in this case - as they allow the claim that it was not possible to understand the voting options prior to the meeting and by this it was not possible to do an early vote.

The aim of all participants of a General Meeting should be to provide clear and unquestionable decisions that could take effect without doubt. This requires a fair option of participation for all members.

Differences between invitation and wiki

The relevant document regarding the business is the (email) invitation as such, if not specified otherwise in that invitation.

However, for some while it is practice, to collect and maintain a lot of the information which is relevant for the resolutions and votes in the wiki and not directly in that email. This also includes the business agenda. To follow the idea of openness and transparency.

At the first attempt for that AGM a slight majority of the present members decided that they did not want to accept an invitation where the agenda was only provided via a link to the wiki and declared an AGM that was invited like this to be "invited too late". A decision at AGM at 2015-11-22 declared it later to "have not taken place".

Probably because of this decision, the invitation for the AGM at 2015-11-22 did not present the link to the wiki in the context of the agenda. It only contained a brief overview over the business items of the agenda as such.

By this a lot of the collected information - and especially the wording of the resolutions - was not provided with the agenda. Especially as the relevant background material for the resolutions was not attached or pointed at in any other way. (This probably would either have been unreadable or have lead to issues with the mail size.)

The text provided within the invitation email was not sufficient to understand the meaning and direction of most of the agenda points.

Because of this and because of the practice to place according information in the wiki (as it was also done this time), the wording in the wiki also has to be considered for identifying the intended wording of a resolution, if the wording in the invitation is obviously not sufficient for a vote. At least as long as the link to this page is provided in the invitation.

Comparable measures regarding the wording presented in the wiki have to be applied as if the wording would have been in the invitation.

However, if a wording is implied within the invitation-agenda, this remains to be leading and members may rely on it.

This conflict can be prevented if either the wording is presented in the invitation (or attached / linked with the invitation) or if the invitation declares the source for the relevant wording in any other way (for example by explicitly pointing to the wiki page).

Differences between requested wording and notice

There were also a lot of differences between the requested wording and the wording in the notice.

This could be a major issue as such (regardless of the information that was send to the members). But that would be an issue between the requesting member or members and CAcert Inc and/or the respective secretary / chair or board. As none of the requesting members has raised such a claim this will not be covered in this case.

But those differences also have an effect in the context of this case.

Differences between the requested wording and the later voted wording have at least the same effect on other members as differences between the wording in other material

If the invitation does not contain the resolutions, it is not clear where to look for them. The original requests are one reasonable source of information about that question. A requester has the right to assume that the requested business is placed before the AGM as requested. And others can make according assumptions as well.

Comparable measures as already discussed regarding the wiki have to be applied.

notification about change of wording

If there is a change (or clarification / definition) of the wording of a resolution, the members have to be informed about the changes. This even is the case for minor changes that are allowed for special resolutions.

The notification about the change of wording has to be done as soon as possible, with enough time to allow members to object about that change prior to the actual vote. It also has to be done in a manner so that members should be able to notice that change.

If there is some objection, that the change is outside the allowed range, the objection has to be considered. If the objection is at least reasonable, the original wording should be used.

challenge based on unclear wording

A challenge as mentioned above, should be done without relevant delay after the issue is discovered by the member (which could be shortly after the meeting, if the differences only become obvious in the meeting). If the general meeting does not deal with that challenge in a reasonable way, the challenge can be placed before arbitration, via a dispute. As was done in this case.

The relevant measure for (changes on) the wording of ordinary resolutions has to be

If there already was a vote about the issue before the member clearly voices the issue, there also have to be indications that the issue with the wording could have affected the result of the vote in a relevant manner.

Such a challenge should not be abused to produce additional work or to delay or repeat a decision one does not like, in an undemocratic manner.

The right of any individual member to participate in a fair manner has to be balanced carefully against a possible interference with the expressed wish of the membership.

amending of resolutions

On request of the Case Manager some clarification on the possibility of amending resolutions.

It is not possible to amend special resolutions within a GM, for the same reasons as discussed above. Possible amendments may be discussed in the according business item. But the special resolution may only be motioned as invited. For voting on an amended version of the special resolution a new GM has to be called.

Regarding ordinary resolutions the relevant restriction is that all members can participate in a fair manner. Because of this all alternatives that are later voted on have to be present in the invitation for the respective GM date. If there is a wish to amend something that is not covered with the invitation, the GM in theory could adjourn the meeting with the request to name also the amended version of the ordinary resolution in the according invitation.

The practical difference for special and ordinary resolutions however is minor.

2. not allowed

Another claim is that some of the resolutions were not allowed because of their effect. This seems to be the case at least regarding the resolution about the subcommittee for the move.

A General Meeting only may act within what the statutes (and laws) allow. There are some clear boundaries and rules that have to be respected by the GM. Business or resolutions that try to violate those boundaries are not allowed or possible to do and if done cannot become effective. If it is not completely obvious, if there is such a violation, a dispute could be necessary to decide on the validity. This even can be done prior to the GM, which is advised.

Obviously not possible to do and by this without effect are for example:

Anything else that is against the rules or clearly outside of the power of CAcert Inc or reserved to another authorities (like the committee) is likely to be impossible and by this invalid, as well.

3. empty resolutions

As already discussed, ordinary business without a resolution is allowed in general. If a business item has some content has to be considered for each specific item, separately.

Such items are "empty" in the sense that they do not have any content for discussion or decision. Following the ruling in a20160330.1, they cannot be business of a General Meeting.

4. Effect of invalidity of single or multiple items to the General Meeting (validity of the meeting)

The invalidity of single or multiple business items of a GM, does not necessarily invalidate the meeting.

For the validity of a GM the measurement does not depend on the validity of the individual business items.

Instead it depends on such questions if

To invalidate a GM, it is not enough that some items were not allowed or performed in an invalid manner.

This only invalidates the (decisions about) those items.

A multitude of such issues can be an indicator for a deeper issue that affects the whole GM.

While there was a multitude of issues named for the items of the AGM at 2015-11-22, those issues only were individual issues with the respective items, which do not affect the validity of the AGM.

Summary

II. Identify the relevant invitation

The dispute is about the correct wording of the resolutions with regard to the invitation.

There were two invitations send for two different meeting approaches for the same AGM. Both invitations look different and both contained (or linked) a different set of resolutions. At least one resolution was not included in the first invitation.

Therefore it has to be clarified which of the invitations is the relevant one.

There were some resolutions done at both AGM dates that indicate that the membership does not regard the first AGM date to be of relevance. However those decisions are not binding on arbitration. If possible they should be used as an indication of the understanding and will of the membership. But as there was a lot of discussion and as the first decision (on which the later ones were based) was extremely narrow, the topic has to be evaluated in the context of this case again.

1. Analysis of motion at 2015-09-27

The motion that was given at 2015-09-27 was: 

I move to post-pone this AGM because the invitation has not been sent in time. (by Benny)

"Post-pone" is not clear a term. It was later interpreted by some members as adjournment by others as cancellation.

As the association rules only name adjournment and not cancellation as a possible move, the initial interpretation indicates an adjournment. But the motions at 2015-11-22 indicate something else.

evaluation of motion

A timeline shows, that the invitation for 2015-09-27 was clearly send in time- It was send at 2016-09-05, a day earlier than the date named in the association rules if special resolutions are present.

It is obvious that the secretary tried his best to meet the requirements of the association rules. As he originally had registered the resolution from Reinhard to be a special resolution, he had to send the notice before 2015-09-06.

--> No issue with the time of sending for this notification can be found. The notice was send in time.

While the AGM may accept something that was send too late (at least if this would not affect others in an overwhelming negative way), it may not declare something that was performed correctly to be performed incorrectly.

--> The AGM never was able to declare something that was send in time to be send too late.

If there would have been doubt about correct performance, Arbitration could have been called via a dispute to decided the issue. (Which was done about meeting the deadlines for naming of candidates, shortly afterwards in a20151117.1.)

The AGM at 2015-09-27 was invited in time. The only effect that the invitation did not contain the full agenda could have been that some items would not have been allowed to be conducted. But as an AGM can be performed without any agenda based on association rules 27 (3) and 25 (2), the invitation was formally correct.

The AGM at 2015-09-27 had quorum. It was opened and closed by the president as chair, correctly.

--> By this a correctly invited meeting has taken place at 2015-09-27.

==> Because of this, the decision of the AGM at 2015-09-27 has to be understood as an adjournment. The interpretation that the meeting did not take place or was "cancelled" is false and not allowed by the association rules as only adjournment is allowed.

Effect of adjournment on agenda / invitation

Based on association rules 30 (1) "no business is to be transacted at an adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place".

==> The agenda at the time of the AGM 2015-09-27 is also the relevant agenda for the AGM that was later performed / continued at 2015-11-22.

The wording of the invitation for 2015-09-27- if at all - would probably be the wording in the wiki. So regarding the wording the invitation of 2015-11-22 could be considered as an update to the invitation of 2015-09-27.

What items were part of the agenda?

If one would do a narrow call, only the items that were on the wiki page at the time when the invitation for 2015-09-27 was send out and the items named under rule 25 (2) would have been allowed to be done.

By adding the link and by naming the deadlines, the secretary obviously aimed to include later items that were send in time for the meeting at 2015-09-27. As no member claimed that those items were not allowed, it has to be understood that the AGM accepted the approach of the secretary, even as this was never voiced, directly. This assumption is based on the fact that a multitude of issues and challenges were raised at, before and after both AGM dates, but the agenda as such never was questioned.

This assumed will of the membership is accepted for this (and only this) case, as and only because there was no challenge but a lot of uncertainty and chaos about the nature of the invitations and meetings, which should be settled.

The item that was added by Marc-Oliver Hofmann, clearly was added after the AGM at 2015-09-27. This is one of the items that were challenged both by the AGM and by the dispute of this case.

==> The item of Marc-Oliver Hofmann was added too late and was not allowed to be done at the AGM 2015-11-22 based on rule 25 (2).

2. Analysis of motion at 2015-11-22 to treat 2015-09-27 to not have happened

At 2015-11-22 the motion agm20151122.6 regarding the AGM at 2015-09-27 was carried: 

Treat the September event as if it had never happened.

If this motion would have any effect, it could affect the interpretation of adjournment / cancellation of the meeting at 2015-09-27.

But, no GM can effectively declare any partial or complete earlier GM to never have happened. This is especially the case, if such a resolution was not included in the invitation. And even more, if no reason is named in the resolution. If a GM could effectively decide something like this, any GM could negate any motion done by any prior GM by declaring that prior partial or complete GM to be invalid. It could do this even without prior warning.

If there were reasons why the "September event" should be considered invalid, this would have to be brought up to arbitration for clarification. But even in this case, any event that was invited, had quorum, was opened, did a decision and then was closed would have to be documented (in that case possibly as an invalid meeting). The need for proper documentation would be even higher, if there are concerns about grave procedural issues that may have to be brought before arbitration (or other authorities).

==> This motion was invalid. It does not have any effect. It especially does not affect the agenda of the AGM.

Comment on two further "related" motions

For completion a comment on two "related" motions from AGM at 2015-11-22, that were not carried: 

Incorporate the minutes from the last meeting as a subpart of this meetings minutes to be confirmed in one part at the next annual general meeting."

Accept Eva's log as a true record of the abortive meeting"

agm20151122.4 describes one effect of the adjournment. The decision about the adjournment was reserved (and executed) for the meeting at which the adjournment took place (2015-09-27). It was not possible to deny the effect of the adjournment at the adjourned meeting.

Further the decision about the minutes of an AGM are reserved for the next AGM (which is not the adjourned meeting). While an AGM may give directions about what should be included, the final decision about the correctness is left to the next AGM.

agm20151122.5 would have been some guidance for the next AGM about the correctness of parts of the minutes.

As both motions were not carried they did not cause any effect. The requirement for documenting the AGM correctly is untouched. The following AGM continues to have the power to accept or decline the minutes.

III. Requested Relief

  1. All Resolutions of the recent AGM be declared null and void where they were not correctly voted upon as presented in the Business call,
  2. that the last resolution heard, "Software Team Lead"", especially be overturned, for the same defect,
  3. that the board be advised immediately that the last resolution is stayed, until this forum has ruled on that last resolution,
  4. that the members be advised in due course that the resolutions be overturned and that they may consider an SGM or other suitable remedy,
  5. that the secretary be advised that only resolutions that make sense be accepted in the future.

Most of this has to be understood as a challenge to the resolutions based on their wording. So at first we should check if the requirements for such a challenge are given.

0. about the challenge to the resolutions by the claimant

There are three points to be checked for the general acceptance of the challenge to the resolutions, beside of the specific content of the challenge.

a) check for no delay

The claimant raised his voice about possible issues with the wording and the possibility to handle items directly after they were announced as requested business by the requesting members. This was even before the first agenda was presented to the members. He repeated this claims multiple times. At the AGM 2015-11-22 (where the items were conducted) he pointed to such issues multiple times again. He also took care that those issues were noted in the minutes. Only days after the closure of the AGM, he filed the dispute.

There was no unreasonable delay on the side of the claimant.

b) check for abusive manner

Most of the challenged resolutions closed with the result which the claimant had voted for. The only exception is the last resolution. If the dispute would result in a ruling that the resolutions have to be repeated, the new result could be less in the interest of the claimant, in most cases.

By this it is unreasonable to assume that the dispute was done to force a new decision for those resolutions.

Further, the argumentation of the claimant is about a "systematic defect" which also leads to the understanding that the claimant is seeking for clarification about the situation as such, instead of getting a specific result for those resolutions.

He also argued in a protective manner for his proxy givers and possible other members.

Last but not least he already had voiced issues with the wording prior to the AGM and at the AGM. This indicates, that he really is interested in the issue and not in shifting a result or to get the wishes of the membership (which are expressed in the votes) reverted.

Even as there is the possibility that the claimant entered the dispute for some personal reasons, this is not visible in the argumentation and prior mails of the claimant.

It should be noted, that another arbitrator refused the case because he saw this differently.

The Arbitrator of this case regards the broadly expressed wish for clarification to be the driving reason for the dispute.

c) relevance of issues for outcome of votes

The claimant argued that some of his proxies-givers, had expressed to be unsure about the content of the resolutions and this was the reason why they had asked him to vote for them, as they assumed that the claimant would understand the topics better or would at least be able to gain enough further information for a vote at the meeting itself.

This is understood as an indicator, that it was hard to provide a vote prior to the meeting.

The claimant argued, that all the votes to the business part of the AGM had a result with only 1 vote difference between "Aye" and "Naye". The claimant assumes that at least some of his proxies would not have given him the proxy if the resolutions would have been clearer in advance. As the results were as close, some of the votes actually may have been turned by this.

On the other hand, the claimant also stated that his own vote would not have been changed, even if there would not have been those issues. Also his recommendations about how to vote would not have been different.

But as there were a lot of issues regarding the wordings for the resolutions at that AGM, the argumentation of the claimant has to be followed. It is possible that at least single members could have been present of absent with their vote because of those issues. Especially as some members only participated with their votes on selective resolutions.

1. All Resolutions of the recent AGM be declared null and void where they were not correctly voted upon as presented in the Business call,

Each resolution has to be evaluated separately, for specific defects.

a) Board reports about the current situation of support and arbitration up to the actual date

The vote that was done was "to move to ignore this resolution as it has no content.".

This was clearly not the original requested resolution (if there was such a resolution).

However the vote was not a material resolution on the matter, but a decision to not handle the item, because it was found to have no content and the members did not even know what was requested by the proposer.

A refusal to handle such an item, especially if the requester is not present and nobody else is able to explain the matter, is in the power of the GM.

The GM is able to do such a decision, if an empty item was allowed on the agenda by the secretary. This is also in line to what the claimant is requesting himself.

A comparable decision was done in a20160330.1.

The decision of the AGM on this point has to be accepted as long as it is not challenged to be done in an abusive manner. Which then would have to be decided via a dispute to Arbitration, with the possible result that the item actually had some contend and would have to be allowed at another GM. There was no such challenge.

While the claimant disputed the vote, he did not challenge the decision that was done by the AGM.

Further: The item in question was added too late and was not allowed to be conducted, even as the membership had not realised this. A vote on the original requested resolution would have been invalid.

==> The according vote and decision is valid. [Even as the material item was not allowed to be conducted as it was added too late.]

Note: The arbitrator did not evaluate if the resolution actually was empty or not.

b) "to create a sub committee, staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc."

This resolution - if accepted - would have been a violation of the statutes beside of other things. This was discussed and seen correctly at the AGM. According to the transcript it seems as if the members reached consensus on this, at the end of the discussion. It is unclear why the vote after the discussion was as close, as during the discussion there was no real disagreement to this findings. The discussed reasoning of the meeting is followed.

If at all, such kind of resolution would have to be a special resolution, as the requested power shift (if possible at all) would have to be reflected in the statutes. For a change of those rules a special resolution is required based on rule 38 of the CAcert Inc. statutes. But even as a special resolution this specific resolution would not have been allowed. Instead some additions to the rules (with special resolutions) would have been needed.

==> The AGM was not able to vote on a resolution like this as an ordinary resolution. This alone makes the vote null and void.

Further: There was a lot of confusion about what the resolution was about. There were different version in the invitation, the wiki and presented in the discussion at the meeting. Also the wiki consisted of an explanation about what the resolution should do, that was not visible in the resolution itself. This was voiced and explained by multiple members in the discussion of the meeting.

The voted version was incomplete in relation to what the requester had send to the secretary and then was placed in the wiki and named in the meeting. The full request was contradicting itself in some points, as members voiced and explained in the meeting.

For any member who wanted to prepare for the meeting, it was unclear what the voted wording of that resolution would be and what effects it would have, as the discussion of the item in the meeting showed. The interpretations of this effect deviated drastically. This is especially relevant, as the request for the resolution was not send to the members in advance. It was also not placed on the AGM wiki and only reachable via another link somewhere below the agenda.

The issues about the wordings alone would have made the resolution as performed by the AGM invalid and would have required a new attempt.

==> But as this resolution was not allowed to be done like this, vote has to be declared null and void. This specific resolution may not be repeated by the GM.

Note: The AGM itself already came to this result. However it also understood, that it only had the power to vote the resolutoin down, as was done. By this the resolution already was "prevented" effectively by the AGM.

the last three: "Public Relation Officer", "Event Officer", "Software Team Lead"

This three business items were requested as one item and they are of comparable nature as well as changes done to them, so are handled together.

The invitation for 2015-11-22 only named

This was also the wording in the wiki at time of invitation for 2015-09-27.

This clearly are no resolutions and do not give any indication about the nature of the business item.

The voted wording was:

The other possible material had the following wording:

All of this are different requests which could be understood to be the business for "Public Relation Officer" (or other officers).

It is a relevant material difference between

All of them are different in a relevant material way to the voted resolution:

Further: Only the original request can be seen as a resolution proposal. It was spread over three business items, while another part was dropped.

Nonetheless, the voted wording came closest to what was in the original request.

But for any member who wanted to prepare for the meeting by looking at the wiki or at the additional mail from Benny, could have understood the business item would be to actually vote on those positions.

This is especially true as there was the split into three items, which could have been a result of a discussion about the topic between the original requester and the secretary, to allow the members individual votes.

Without conferring with the requesting member, the secretary should not have split that requested business item into multiple ones (and dropping the last part). He also should not have done this without notifying the members about the change.

As the members were not informed the changes and the split into different items was not accompanied with any explanation. By this the members could come to the assumption that the wording presented in the wiki would be an updated wording from the requesting member and by this would be the wording to vote about at the AGM.

A split into different parts which together would consult in the requested item, probably would not have been relevant enough for declaring the resolutions to be conducted in an invalid manner. It would have been possible to provide early votes or to instruct a proxy.

There also was the question if those resolutions where either empty or not allowed. Such questions were raised at the AGM itself and also in the dispute.

The version where the AGM would have voted the team leads would have been outside of the authority of a GM. The ruling in a20150420.1 places the decisions about team lead solely in the hands of board. Regardless of that ruling also the Security Policy places the management of the critical teams in the hand of the committee of CAcert Inc. This is reasonable because such kind of decisions possibly need some more research and communication than it is possible to do for a GM.

A general resolution that board should fill those positions would have been empty as this is already a task of board.

The only effect that the resolution had, was to add an extremely short deadline (4 weeks) for deciding on those positions. At the first meeting a new board has to focus on their own constitution, handover with former board and some other formal topics. It is unlikely that in such a period, a board can do deep investigation or searches for candidates.

An attempt to enforce such a quick decision when presenting candidates at the same time, while the former board had decided against installing those candidates, is an unreasonable attempt to push those candidates. This would be an abusive interference with the authority of board to install those positions.

A possible business item would be to discuss the issue with filling such posts or a request to analyse if all named posts are required or anything else that helps board to fill posts in a reliable manner but which does not interfere with the authority of board to select the specific team leads.

If there would have been some specific reasons provided and outlined before the AGM, why there is a special urgency to fill those posts or any other grave relevant issue in this context, the evaluation of such a resolution could be different. Even then the deadline in general would have to be longer than 4 weeks.

==> All in all this resolutions are invalid.

Note: The possible effect of this resolution never was of real relevance, as board nominated those team leads within the deadline, even as the resolution was suspended by the preliminary ruling.

2. that the last resolution heard, "Software Team Lead"", especially be overturned, for the same defect,

There is no need for special overturning of this resolution, beside of what was already stated.

A special dealing with this resolution is rejected as the claimant failed to convincingly provide arguments why the defects regarding this item were worse than the defects of other items.

3. that the board be advised immediately that the last resolution is stayed, until this forum has ruled on that last resolution,

This was handled with the Preliminary Ruling.

4. that the members be advised in due course that the resolutions be overturned and that they may consider an SGM or other suitable remedy,

This point was added by the claimant to allow or even advise members to handle all those items which would be possible to repeat, after the ruling. Even if they were declared to be handled invalid.

As this is not possible, at least in the way those items were entered, no such advise will be given.

However it is sensible to inform the members about the ruling on the resolutions. As affected party they need to be informed about the ruling, anyway.

The Arbitrator also advises the membership to clarify the general conflict between the possibility to handle open topics and to allow early votes within the statutes.

If the claimant aims for further remedies he should have named them in the relief.

The claimant later stated about this relief: "You can ignore it all entirely. It was just a way to couch the attack on the resolutions as not an attack on members."

5. that the secretary be advised that only resolutions that make sense be accepted in the future.

The statutes of CAcert Inc. require in rule 27 (4) that the secretary accepts any business that a member desires to bring before a general meeting.

Because of this, a secretary may not just refuse a resolution because it does not make sense for the secretary.

But the secretary has to check if the requested topic can be business at that General Meeting and if it would be ordinary or special business. For special business a resolutions wording has to be provided to enable the secretary to accept it as business. Some further requirements were discussed above at "not allowed" and "empty".

Such checks have to be done by the secretary. If there are obvious or possible issues, so that the requested topic cannot become the required kind of business, the secretary should address the requesting member about those issues. This has to be done as soon as possible, so that the item could be adjusted accordingly, if possible. If the item was already announced to the membership to be an item at the GM, by the member, the secretary or somebody else, the secretary should notify the members about the issue as well.

If the issue is not obvious and the secretary is unsure or has doubts if a requested item could be business at the respective GM, and the requesting member insists in the original request or does not respond, the secretary should seek clarification via a dispute to arbitration as soon as possible and inform the membership about this.

In such a case, where the secretary is not sure if the item is allowed business, the secretary has to accept the item as business under the condition of the arbitration. If that issue was not decided by arbitration, before the GM is held, the secretary and chair also have to ensure that the members are informed about the reservations of the secretary when the item is called at the GM. The secretary - and the requesting member - have to provide reasons for their position. Before the item is conducted, the GM then has to decide if the item is handled, postponed or rejected.

That decision of the GM is not binding on Arbitration. However, the Arbitrator who handles such a case, should consider to include that decision into the deliberation of that case.

Ruling

I hereby rule:

I. General clarification.

1. A general question  was, if the wording of a resolution may be changed after the notification about the agenda ("invitation") is send to the members or if the vote has to be done as invited.

a) Special resolutions

 * have to be provided with the notification,
 * may only be changed in minor, non-material manners (typo, grammar) prior to the vote and
 * no amendment  is possible at the same general meeting ("GM").

b) Ordinary business

 * does not have to provide specific resolutions with the notification
 * but if no specific resolution or concrete idea for a resolution is provided, only discussions are allowed for that item.
 * To allow a vote on an ordinary resolution, all material alternatives for the vote have to be predictable based on the material provided in the context of the invitation, so that early votes are possible, regardless if members use that option.
 * New amendments to ordinary resolutions can only be done after an adjournment if the amendment is named in the new invitation.

2. If there is a change in the wording of a resolution after the first notification was send, the members have to be notified about this change, by the secretary (prior to the GM) or chair (at the GM), with enough time to address that change prior to the vote.

3. Any change of wording opens up the possibility of challenge that the change was not allowed.

In the case of ordinary resolution, a member who challenges a change of wording, has to show 
a) that and how this change made a material difference or 
b) that and how this change leads to an impossibility to place an early or proxy vote.
If the challenge to the ordinary resolution is done after the vote, it also has to be shown 
c) that the issue could have been relevant for the outcome of the vote.
It is enough to indicate a realistic possibility.

4. Such a challenge should not be abused.

5. The right of the individual member to participate in a fair manner has to be balanced against the interest of the membership to have their expressed wish (vote) stand without unreasonable interference.

6. The invalidity of business items, does not invalidate the GM. The issues named in the dispute were only issues about individual items which do not invalidate the GM in total.

II. Specific clarifications regarding the specific AGM:

7. The AGM at 2015-11-22 was a continuation of the adjourned AGM at 2015-09-27.

The invitation for AGM 2015-09-27 was send in time and by this is valid. The AGM cannot declare something that was send in time, to be send too late. It only can accept some (minor) defects but it cannot declare something without defects to have defects.

8. The only possible interpretation about said motion is, that the AGM was adjourned, to be continued at a later date with a second invitation according to association rules 30. This adjournment did not allow to add further items to the agenda according to association rules 30 (1).

Only the items that were included in the agenda of 2015-09-27 could be performed at 2015-11-22.

9. Even as done in an extremely unusual manner, it is understood that the membership has accepted all items which were requested in time and added to the linked wiki page as part of the agenda for 2015-09-27, even as no further notification about them was distributed to the members.

The Arbitrator has doubts about the validity of this "decision". But as

 a) this was one of the few elements that was not challenged by any member,
 b) the result would not lead to a material difference because of the invalidity for other reasons,
 c) it would not make sense to repeat those items at the next AGM

this "decision" is accepted exceptionally by the Arbitration for this and only this AGM.

10. Even this very broad interpretation cannot be extended to items that were added after 2015-09-27. The business requested by Marc-Oliver Hofmann was not allowed to be performed at 2015-11-22.

11. Motion agm20151122.6 "Treat the September event as if it had never happened." is invalid.

No GM can effectively declare any partial or complete GM to never have happened. This is especially the case, if such a resolution was not included in the invitation and no reason is named in the resolution. If a GM could effectively decide something like this, any GM could negate anything done by any prior GM by declaring that prior partial or complete GM to be invalid, without warning. Such kind of decision is reserved to Arbitration or comparable authorities.

III. On requested relief

12. The challenge to the resolutions by the claimant was allowed and valid.

He had raised the issues without delay, provided arguments why they were relevant and how they possibly affected the result of the votes. As the issues were multitude and partly of a grave nature and as the claimant argued in a protective manner for others, the claim is not understood to be abusive.

13. The motion agm20151122.9 "To move to ignore the resolution for 5.1 as it has no content" was allowed as it was not a material decision on the matter. The AGM is able to reject items for emptiness or comparable reasons, even if the item is invalid also for other reasons. Such a motion is not binding on Arbitration.

The Arbitrator did not evaluate if the requested resolution actually was empty.

14. The motion agm20151122.10 "to create a sub committee, staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc." is invalid both for formal reasons based on the change of the wording and because it was asking for much more than an ordinary resolution would be able to do. This was correctly seen and voiced in the discussion at the GM. Those arguments are followed.

The motion and vote are declared null and void. This specific resolution may not be repeated by the GM.

15. The motions agm20151122.11, agm20151122.12, agm20151122.13 "that the new board needs to fill the vacant team leader positions within 4 weeks after the election: a new Public Relation Officer" (respective "Event Officer" or "Software Team Lead") are invalid for the following, combined reasons:

a) There were a multitude of material different wordings named prior to the meeting at different relevant places but none of them matched the later voted wording on a material level. By this it was not possible to declare an early vote in a sensible manner for those motions.

b) Those resolutions were either empty or overstepping the rights of the AGM or abusive.

They are declared null and void. They are not allowed to be repeated like this. Some alternatives are named in the deliberation.

16. The relief to especially overturn the last resolution heard, "Software Team Lead" is rejected. The claimant failed to convincingly provide arguments why the defects regarding this item were worse than the defects of other items.

17.  Association rule 27 (4) does not allow the secretary to refuse a resolution only because it does not make sense for the secretary.

But the secretary has to check if the requested item can be business of the requested kind at that GM. For special business a wording for the resolution has to be provided to enable the secretary to accept it. Some further measures are named in the deliberation of this case.

If the secretary discovers possible issues, that would hinder the item to become the required kind of business, the secretary has to address the requesting member(s) about those issues, as soon as possible, so that the item can be adjusted. If the issue is not completely obvious and the requesting member(s) insists in the original request or does not respond, the secretary should seek clarification via dispute. 

The secretary then has to accept the item as business under the condition of the arbitration. If the dispute is not decided before the GM, the secretary and chair have to inform the members about the specific reservations of the secretary when the item is called at the GM. Before the item is conducted, the GM has to decide if the item is handled, postponed or rejected. That decision would not be binding on Arbitration.

IV. Additional points

19. The membership of CAcert Inc. is hereby advised

a) to provide specific resolution wordings even for their ordinary business, if they aim at a vote for that item

b) to take care that those wordings are distributed with the invitation to the GM,

c) to clarify  the general conflict between the possibility to handle open topics and to allow early votes in the association rules. The clarification would not have to follow the findings in this case but can declare something differently, as long as fair participation is possible for all members that are eligible to vote.

20. Further information, explanation and guidance to the handled topics are outlined in the deliberations of this case.

21. The Preliminary ruling is cancelled.

22. The challenge to the resolutions - and by this the dispute - was allowed and accepted because of the multitude of issues regarding the resolutions or their handling. But a lot of the dispute was not really necessary as there was no effect to be cancelled for most  resolutions, as they were already rejected by the AGM for the claimed material (and not only formal) issues.

The one resolution, that possibly took some kind of effect for a short period, could have been addressed alone. The need for general clarification about requirements on the wording or other issues could also have been addressed by a dispute for clarification on that topic alone.

The request to address all those resolutions via a ruling - even as allowed - lead to a lot of work for Arbitration, without leading to much relevant effect.

Because of this and because the dispute showed special interest of the claimant that no question about the validity of those resolution remains, the claimant should be involved in this clarification.

The claimant Ian G is ordered to organise any necessary update to any relevant documentation on the affected AGM, so that it matches the ruling. This includes possibly missing documentation or other appropriate information to the membership. The order should be executed without unreasonable delay. A final note of execution should be documented in the case file.

23. The above decision may not be interpreted in a manner that the claimant did wrong. He had the right to file as he did.

Eva Stöwe, 2016-11-17

Comments of the Arbitrator:
The ruling is more strict on the requirements of the wording than I would like it to have. This is due to the right to participate via early votes. A member can decide against an early vote because of the wording prior to the meeting. But if something else is voted the member possibly would have done that decision otherwise.

CAcert is spread over multiple continents with different time zones. Some members always will have issues to participate because of time zones and the like. Those members are already disadvantaged in their possible participation.

The right of that member has to be balanced against the option of improving decisions based on better wordings. As the rules are already strict on that matter especially for special resolutions and as this remains possible by handling the issue at a later date, the right of the individual member outweigh, here.

If there would not be early votes the picture could be slightly different if the proxy holders don't see an issue for their proxies with a change of wording. However even then the members who are not able to participate in person or proxy have to be taken into account again. They may have wonted to name a proxy for a completely unpredictable version of the resolution.

Execution

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Interpretation of Association Rules

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to be done

Arbitrations/a20151125.1 (last edited 2016-11-17 19:47:31 by EvaStöwe)