- Case Number: a20160913.1
- Status: ruling
- Claimant: Stefan T
- Respondent: Eva Stöwe
new initial CAse Manager: AlexRobertson
first initial Case Manager: EvaStöwe - managed case based DRO decision m20161119.4
Case Manager: PietStarreveld
- Date of arbitration start: 2017-02-28
- Date of ruling: 2017-04-18
- Case closed: 201Y-MM-DD
- Complaint: Appeal of Arbitration Case a20150823.1
- I ask that my account and all my certificates are put back in working order as I am sure that theappeal panel will see that the ruling given by the Arbitrator is invalid. DRP 2.2 bullet9.
- Furthermore I request that the Arbitrator, Eva Stöwe, has to renounce her statements implying that I am not reliable, which is a public available defamatory statement.
Before: Arbitrator: Alex R. (A), Respondent: Eva Stöwe (R), Claimant: Stefan T (C), Case: a20160913.1
- 2016-09-13 (issue.c.o): case [s20160908.78]
- 2016-11-20 (iCM): added to wiki, request for CM / A
- 2016-11-20 (iCM): notified parties about case
- 2017-01-17 (iCM): asks other arbitrtor to take over role of iCM
- 2017-01-23 (iCM): asks all other arbitrators to take over as iCM
- 2017-01-29 (new iCM): new iCM: tells first iCM that he would take over as iCM
- 2017-01-31 (first iCM): informs other arbitrators about new iCM
- 2017-01-31 (first iCM): informs parties about change of iCM
- 2017-02-20 (CM): pickup of Arbitration Case a20160913.1
- 2017-02-20 (CM): notify Arbitrators of search for Arbitrator of a20160913.1
- 2017-02-20 (Arbitration): reminder 1 to CM about the importance of following the Arbitrator selection procedure properly
- 2017-02-27 (Arbitration): reminder 2 to CM about the importance of following the Arbitrator selection procedure properly
- 2017-02-27 (CM): apologizes for clumsy and confusing initial emails
- 2017-02-27 (CM): select Arbitrator of a20160913.1
- 2017-02-27 (R): asks CM if he has verified that A has no CoI
- 2017-02-27 (R): asks CM to forward the question to all parties immediately and to reply to it as soon as all parties have been informed
- 2017-02-28 (CM): init mailing
- 2017-03-01 (R): claims this case is not a valid appeal and summarizes counter claim to follow
- 2017-03-01 (R): submits full counter claim
- 2017-03-02 (CM): replies R and C that he has verified that A has no CoI
- 2017-03-02 (R): notifies C and CM of information missing in case log
- 2017-03-03 (CM): apologizes to R and C for information missing in case log
- 2017-03-26 (R): given the current lack of responsiveness of C asks A to prioritize a decision on R's primary request to dismiss this
- 2017-03-27 (A): forwards init mail to C and notifies C of the possible consequences of not replying to the init mail
- 2017-03-27 (A): forwards delivery receipt of email successfully sent to C
- 2017-04-18 (A): Ruling added
Link to Arbitration case a20160913.1 (Private Part), Access for (CM) + (A) only
EOT Private Part
Dear Dispute Resulution Officer, I, Stefan T[...],hereby appealthe ruling a20150823.1. The Casewas lodged for an ABC.Eventually, due to my resignation, it was first dismissed and after my complaint it was extended out of scope. The ruling that was given after my requestfor deletion of my CV is * a) out of scope of this case, * b) not based on the rules and policies of CAcert * and c) noton those of UNCITRAL. As Philipp Dunkel stated that CAcert's arbitration system is based on UNCITRAL,I am wondering why the arbitrator Eva Stöwe is continously neglecting the following: 1.The Arbitratoris extendingthe arbitration case a20150823.1 with other arbitration cases that are not part of the given case. This is against UNCITRAL "Article 28. Rules applicable to substance of dispute" (especially 4). 2. The Arbitratoris neglecting the right of a party involved in an arbitration case to refuse Arbitratorsreasoned, especially arbitratorsthat are obviously biased.DRP 1.5. UNCITRAL Article 11 through13 3. The procedure that Eva Stöwe appointed herself as arbitrator is not the one given by the DRP 1.3 bullet 4. The DRP qoutes the "Case Manager selects the Arbitrator" the history log shows "2015-08-23 (A): I take care of this case as A, Philipp Dunkel will be CM". This shows that Eva Stöwe didnot follow the DRP.This is against UNCITRAL Article 8 "Appointment of arbitrators". 4. As the Arbitratorruled in section 3.5 to revoke all certificates immediatly she ordered something that is not easy to rewind. Especially as she did not gavethe claimant any time toreply orappeal to thispart of the ruling. I ask that my account and all my certificates are put back in working order as I am sure that theappeal panel will see that the ruling given by the Arbitratorisinvalid. DRP 2.2 bullet9. Furthermore I request thatthe Arbitrator, Eva Stöwe,has to renounce her statements implying that I am not reliable, which is a public available defamatory statement. Should this appeal be dropped or not be handled by December15th2016, which is given by UNCITRAL, I maynotifytheOFT. Due to fair handling of the appeal,I assume that the details of thisappeal reaches the affected Arbitrators only after opening of the appeal process. Best Regards Stefan T[...]
Parts within  anonymised.
Counter Claim by R (Eva)
Dear Arbitrator of a20160913.1, I see some need to file a counter claim in a20160913.1 as I have deep doubts that the case is in the interest of CAcert community. And also because I am named as respondent, here. But before I do so, I wish to express that I understand why the claimant [...] does not like the ruling of a20150823.1 and seeks to get it reviewed. I sincerely wish him good luck to convince an arbitrator that a more positive ruling would be appropriate. But I fear that his chances are quite low, as for me the evidence was overwhelming. So much, that I tried to stick to the core parts and skipped further details to leave the parties as much grace as possible. That is also why I first tried to close the case without a final result in a manner that would not exclude another ABC and by this would allow the parties to get out of that case without further damage to their reputation. Which the respondent of that case and claimant of this case regrettably did not accept, so that I was forced to finally rule in that case. I. My counter claim 1. My primary relief is: Dismiss / reject the dispute as an invalid dispute for at least the following reasons: a) not duly filed b) partial invalid relief c) no DRP acceptance of claimant d) missing complaint 2. My alternative relief would be: a) To dismiss / reject the dispute as an appeal or at least b) To dismiss the requested relief that I would have to renounce my ruling as an invalid relief or at least an invalid relief for an appeal. (And by this to release me as respondent of this case.) 3. If both are rejected and the case is accepted in total My relief would be to line out roughly the requirements for appeal cases or cases against a ruling Arbitrator in that role. II. Argumentation for my relief: 1. Dismiss / reject the dispute as an invalid dispute for at least the following reasons: a) not duly filed The dispute was not filed with firstname.lastname@example.org as DRP 1.2  states, but with DRO. While this normally could be neglected as not relevant or based on ignorance, I don't think this is the case here. The claimant was not a common member but had been a RA-auditor (formerly Co-auditor). A requirement for this role is to know about how to file a dispute correctly and how to collect evidence for a dispute . Even more, he was a triage member and by this was handling the support-queue and as far as I remember even was handing over disputes himself. Further he was respondent of an ABC case for support team and by this should have made himself familiar with the SP about requirements for support which includes basics about disputes and how to handle them as CM at least at a basic state. Actually as he appeals the ABC ruling, he more or less has to claim that he is familiar with the SP and related documents and that he knows about and agrees to SP and DRP. As the SP 188.8.131.52. requires documentation of "Agreement with appropriate policies" . So he was not ignorant about how to file disputes / appeals (or at least should not have been). On the contrary it seems that he has filed the dispute deliberately somewhere else than with email@example.com, to ensure that the usual path of a dispute is not taken, as he claims in his dispute: "Due to fair handling of the appeal,I assume that the details of thisappeal reaches the affected Arbitrators only after opening of theappeal process." By this the claimant intentionally has tried to misfile the dispute in the attempt to decline knowledge about the dispute to the respondent as long as possible. Which is contrary to a fair handling of cases as the respondent would be depleted of the chance to file any initial entry (including defences and counter-claims) to the case in the early states or at least reduces the time for preparation for those entries. Actually in any sensible legal system it is a core element that all parties regularly know about any claim / dispute etc. as soon as possible. Just as coincidence, the model set up for UNCITRAL arbitration to which the claimant tries to point as a reference, includes that the first step of case is that the claimant sends the dispute to the respondent (and not to any arbitration authority). [4 - Article 20] DRP itself is silent about this point, but arbitration lessons require notification of the respondent about the case directly after the case is made available in the wiki . Again the claimant should have been familiar with this. In total I believe it to be of relevance in the current situation that the case was misfiled. It is not in the interest of CAcert, its members, any future party or the arbitration team that intentional misfiling is accepted or even rewarded. But maybe this was healed by the actions of the DRO who ensured that the case was moved to firstname.lastname@example.org, quickly. b) partial invalid relief The case was filed as appeal. A successful appeal according to DRP 3.4 is the re-opening of the case with the possibility of an improved ruling. The first part of the claimed relief ("my account [..] are put back in working order") is probably covered by this. Even as it is astonishing that the request does not touch the parts of the ruling about the termination of his membership or anything the like at all. But the second part ("my certificates are put back in working order") is impossible to do, which the claimant should know. The third part ("Eva Stöwe,has to renounce her statements implying that I am not reliable, which is a public available defamatory statement.") is hard to combine with the idea of a re-opening of the case. If the case would be re-opened and adjusted in favour of the claimant, there would be a statement that the original ruling was incorrect and any current perceived or actual implication to the reliability of the claimant would be adjusted as requested. An additional renouncing would not help the claimant in a relevant manner but would be a (requested) hardship against a ruling arbitrator, for deciding a dispute. According to DRP 3.5 "All liability of the Arbitrator for any act in connection with deciding a dispute is excluded by all parties, provided such act does not constitute an intentional breach of duty." So at least as long as the claimant does not provide convincing evidence about (or at least a specific and reasoned claim of) intentional breach of duty on the side of the ruling arbitrator such a relief is excluded as a valid relief against a ruling arbitrator. According to the same statement any party under DRP agrees to this. And either the claimant agreed to this in the original case, or the finding that he does not accept DRP - which was the basis / core of the ruling - was correct. So either he has accepted that I, as ruling arbitrator of that case, could only be made responsible for intentional breach of duty regarding the ruling and by this that he would need to claim specifically and based on arguments in that direction if he later requests actions against me, or my ruling that DRP is not accepted by the claimant is correct. And by this also my further ruling which was following the idea of DRP 4.2 last point: "A country may not have an Arbitration Act. In that case, the parties should enter into spirit of the forum. If they choose to break that spirit, they should also depart the community." A claim or at least indication about intentional breach of duty in connection with deciding the original dispute is not visible, here. Even less any idea of evidence or argumentation in that direction. On the contrary, the claim is repeatedly about "neglecting" which points much more to negligence. Which according to DRP 3.5 is not sufficient. c) no DRP acceptance of claimant Additionally to the evidence leading to the ruling of the original case - of which I remain to be convinced (and at the moment is binding) - the respondent showed none-acceptance of core elements of the DRP in a multitude while filing the current dispute. As the DRP requests that all parties accept the DRP this would be a hindrance to do this case. In specific: - The claimant did try to file with DRO instead of email@example.com (DRP 1.2), knowing the requirement. - The claimant demanded that the dispute is not shown to other parties "before opening of the appeal process" which is contrary to handling cases with legal fairness (DRP 2.2 point 9) - The claimant points to a different governing law (UNCITRAL) than established in DRP at multiple places. - The claimant asks for a relief which any party agrees that it is excluded (see above) via DRP 3.5 - The claimant threatens arbitration with "Should this appeal be dropped or not be handled by December15th2016, which is given by UNCITRAL, I maynotifytheOFT." Whatever relevance statements of UNCITRAL have, a threat about "notifying OFT" is clearly nothing that is covered by UNCITRAL and has to be understood as a threat against the handling arbitrators to ensure that the case is handled in a manner as the claimant wants to have with some kind of force. This is an attempt action against the independence of arbitrators (DRP 1.5 and others) and against the right (or even need) of arbitrators to decline a case (DRP 1.5). Further, the filing as such indicates that the claimant does not accepts a ruling in general. It's hard to read the dispute otherwise than a request to have a ruling changed and actions against the arbitrator awarded just because the claimant says so. The "argument" regarding the ruling is: "I am sure the ruling given by the Arbitrator is invalid." Which is far away from being an argument. Especially as the ruling arbitrator laid out arguments why the ruling would be valid in the reasoning of the ruling and not even one of those arguments is addressed. As there are no other reference to the ruling or it's possible invalidity, it's hard to read this otherwise as if someone believes to address opinions instead of rulings. Together with the threat for the possibility that the case would be dropped (which would be not ruled as requested) indicates that the claimant only would accept a ruling if it pleases him. Because for anything else he already states that he would "notify the OFT". The dispute directly indicates that regardless of any possible argumentation of the arbitrator who treats the new case, a decision to drop the case would not be accepted. d) missing complaint Just for completion, I also doubt that the complaint and the respondent are named appropriately in the dispute according to DRP 1.4. See for example iCM notice in case file and further comments, below. The is a more detailed argumentation below regarding appeals. But for a complaint as such, the dispute has to say what the claimant believes to be wrong (or at least need for review if the case is just required by SP or the like) and why. DRP 1.4 states: "The Complaint. For example, a trademark has been infringed, privacy has been breached, or a Member has defrauded using a certificate." The dispute here is directed against a ruling and asks that it should be changed. While the claimant states partly what he wants to have changed about the ruling, I am unable to identify the part(s) of the ruling that he claims was wrong for what reason. (One exception below.) The only exception is that I ruled "to revoke all certificates immediatly she ordered something that is not easy to rewind". But while there is a reference to the ruling it does not say what about this would be wrong. It's just usual that rulings ask for direct action (which is not necessary the same as immediately). [Btw: The claimant who complained that the arbitrator was acting too slow multiple times shortly before that ruling, but then did not use the two days between ruling and execution to reply or protest. It is unreasonable to assume that a ruling for delayed action would made a difference, regardless the question if it would have made sense. There was time before execution but he did not try to use it.] There is no reference why this or any other part of the ruling would be wrong. Instead of an argument the claimant only repeated this small part of the original ruling. Which actually only is a statement that there was a ruling like this. So, the claimant asks for changes of a ruling but all he says about that ruling is that it asked for direct action. This would lead to a complaint "the arbitrator ruled direct action". Which without further explanation is expected behaviour of an arbitrator. This is hardly enough to describe an issue. Even less to describe a valid complaint. DRP 1.4 indicates that issues with the dispute - especially with filing, claimant and relief - probably leads to the case not being done but that the Case Manager may refile if the issues are fixed. As there is no deadline for disputes or appeals the claimant could re-file again after fixing the named issues (if possible), so if there is a relevant core to the case the case can be re-done, then. In that case rejecting/dismissing the case (with option to file again with updated dispute) does not harm the claimant unreasonably. But if there is not such a core, a case should not be done. 2. alternatively: a) To dismiss / reject the dispute as an appeal The dispute states to be an appeal. According to DRP 3.4 an appeal is only possible "In the eventof clear injustices, egregious behaviour or unconscionable Rulings". In any other situation the original ruling is binding. While it is in the interest of the members that serious issues with rulings are addressed in general, it is also in the interest of the community to close cases and to rely on the final and binding effect of rulings, as long as they are acceptable. That is actually one of the core reasons for internal arbitration. This is especially true as any case and especially appeals cost an immense amount of resources of volunteer manpower. The interest of the members is clearly that those resources are directed to cases which need a decision and not to circle around the same case again after an acceptable ruling was provided. On the contrary members in general have an interest to know on what they can rely and rulings are meant to be reliable (binding and final) regularly as soon as they are given. So as long as there is no indication that the high barrier for appeals is taken, an appeal is not in the interest of the membership. The DRP also indicates this by the dual step of appeal (first review by single arbitrator only if the review allows re-opening the case is handed over to the panel of 3 arbitrators). By this any appeal probably should at least indicate - what of the three appeal indicators is seen by the appealing party, - in which manner and - how this leads to the need to update the ruling - in what direction. If this is not present, the appeal does not seem to be in the interest of the membership as the wording of DRP sticks the possibility of the appeal to those three indicators (clear injustices, egregious behaviour or unconscionable Rulings). As there is no deadline for filing appeals in DRP, there is no specific hardship for the claimant if a dispute for an appeal is dismissed because indications of those points are missing. The claimant could update the case with the required elements and file again. If the claimant is unable to do so, it is unlikely that the requirements for an appeal are met. If he is able, the appeal then has a much clearer basic and possibly can proceed quickly. According to DRP 1.4 it is the job of the claimant to already provide the complaint in the dispute. It's about the interest of the claimant so he can be asked to provide the necessary effort in advance instead of demanding an overly high amount of volunteer time from the arbitration team to identify if there is a possible appeal to begin with the process. Actually it is quite something to expect that first two and later three members spend their free time on a case that just was decided by somebody else with probably a lot of effort and time, just on some loosely connected lines of text that don't even indicate the need for the new case or the issues with the original case or the updates that are specifically expected just because the word "appeal" is present. It is hard to see anything like this in the current dispute. Neither "clear injustices" nor "egregious behaviour" nor "unconscionable Rulings" are claimed or indicated in any specific manner. Only at one point one can get an idea about how the ruling possibly should be adjusted, even as there is no indication why the ruling as such would be wrong and what parts of the rulings that would be. By looking at the dispute one has to add a lot of guesswork to see the link to any of those. If there is a ruling which was influenced by any of the three indications for an appeal, it should be quite easy to point to the issue and to describe why it leads to the need for a new ruling. The filed dispute however does not even mention one indicator and even less includes any argument about which actions or parts of the ruling would be causing in which manner a clear injustice, egregious behaviour or unconscionable ruling. Even if no need for this would be seen, an appeal presumably at least would have to name some specific unusual and relevant in-correctness in the original ruling (or handling of case that affects the ruling). This is not the case, here. The argumentation why the ruling needs adjustment is "as I am sure that theappeal panel will see that the ruling given by the Arbitratorisinvalid". The only specific reference to the ruling is about ruling part 3.4 (and not as claimed 3.5): "3.4. All his certificates should be revoked and his account should be blocked, directly." - But it is hard to see any unusual element in this provision in the context of a ruled termination of membership. Both are elements of the usual termination process as well. Even less, there is no argumentation at all why the original ruling is perceived to be wrong. There either should have been some argumentation why a termination of membership would not be acceptable for "not accepting DRP, CCA and other policies", or why someone would have to be reliable to work under SP, regardless of such none-acceptance or why the finding that those policies are not accepted by the claimant was wrong. Nothing like this is visible. Actually even the usual "I accept DRP/CCA" that a lot of members add to their disputes is missing. Which at least could have provided an indication about what part of the arguments behind the ruling is challenged. All in all the dispute just misses any element for an appeal beside of that it is called "appeal" and that it requests a new ruling. While I personally do not mind a review of my case, I believe that it would be against the idea of DRP and against the interest of the community to allow an appeal on such a basis. Only if good reasons to do so are provided, rulings should be challenged, else the ruling should be binding and reliable. b) To dismiss the requested relief that I would have to renounce my ruling as an invalid relief or at least an invalid relief for an appeal (And by this to release me as respondent of this case.) The requested relief against the original arbitrator conflicts with the idea of an appeal which is directed to a re-opening and re-do of the original case to come to another ruling. While it is clearly in the interest of the community that incorrect rulings are adjusted and also that arbitrators who intentionally act against their duties are punished, both should not be mixed together. As the first has to focus on the original issue, case and ruling, the second is completely independent of the original question and has to focus on the actions of the arbitrator. Even the respondents of both cases probably would have to be different (see below). An appeal is regularly a review and possible re-do of the original case (DRP 3.4). It's job is to fix any unnecessary hardships if a ruling actually was not acceptable. It's about giving the parties another chance with a re-do, if there is a need for this. It's about settling the original question / dispute in such cases where the original ruling was just not appropriate. So it's in honour for the original parties to finally end their dispute. This result is independent from the question if the arbitrator acted so wrong that the arbitrator would be liable. Theoretically, an arbitrator probably could even have done an intentional breach of duty, without a need for adjusting the ruling or re-do of the case. (Possibly because he was replaced by the CM before the ruling, or the case was dismissed or withdrawn because the original need for the case evaporated independently from the actions of the arbitrator or something like this.) However this quite likely would be an extreme exception. Regularly it's the other way round. While there may be an issue which is sufficient for a re-do of a case, this often would not be a sufficient argumentation for an intentional breach of duty by the arbitrator. If we look at rulings from courts, there are a multitude of appeals. A lot of them get rejected but a good number are allowed and a good part of them are successful. But it is quite seldom, that those successful appeals lead to any need for actions against the original judge or court. There is a recent case in Germany, which was mentioned in the media, because it was understood to be a (bad) oddity.  The judge in the original case just had ruled outrageously low and then had just copied and pasted random parts of the case file as argumentation for the ruling. This was appealed and the appeal court decided a new ruling. They commented drastically on the original ruling. Beside of that (short) comment the appeal ruling just settles the original case. - Independently of that appeal case, some actions against the original judge were taken that seem to lead to a disciplinary hearing but that's absolutely not a part of that appeal. It was not even mentioned in the appeal. So sure, if there is indication of intentional breach of duty by a ruling arbitrator, this should be checked. And if found to be true, this should probably lead to actions against the arbitrator. But all parties agree that they only could request actions against an arbitrator in such a situation. So they would have to include concrete and specific arguments about what the intentional breach of duty would be. Which is not the case in the current dispute. But even then, this would have to be independent from an appeal case. (Or only possible after an appeal case that found some possible indications for intentional breach of duty.) Further, DRP 3.5 is extremely restrictive and does not allow adjustments to it's provisions by others than an appeal panel. No other provision in any policy is protected like this. So there is a very highly expressed interest and agreement of the community (and all parties!) that the ruling arbitrator should be protected against such cases and also according allegations. It's in the interest of the community that arbitration and arbitrators and their integrity are not challenged unnecessarily or regularly. Especially in situations where it can be expected that one party is unhappy with the ruling the need for specific arguments should be present to allow requests for actions against the arbitrator. It is in the interest of the membership that necessary but uncomfortable rulings are given and not avoided by the arbitrator to avoid filings against his person. 3. If both are rejected and the case is accepted in total If my argumentation for the above falls short I would ask for an outline which requirements for filing an appeal exist so that it is sufficient basis for an appeal review to begin; especially regarding the elements named in DRP 3.4. Further I ask for the same regarding requested remedies against a ruling arbitrator in the context of the provisions of DRP 3.5. And how both are related. And where there are limitations. What would be a minimal appeal? Just "appeal against [case number]?" would that be sufficient? Or "Punish arbitrator of [case number] because the ruling was wrong?" One of the core questions also would be who is the respondent of such a case, in general. And what the direction of the case should be about (original dispute or actions against the ruling arbitrator or handling team as such). If an appeal is a review regarding the question if there is a need to adjust the ruling and then to do that adjustment, it makes no sense to have the original arbitrator as respondent. This is not how appeals are done regularly by courts (see above). But more important, it is also damaging to the original parties, as they would not be parties of the review or possibly even the re-opened case any more. Which reduces their options to participate, dramatically. Which directly leads to the question of a fair handling of the review and of the re-opened case. All the original parties which would be affected by an updated ruling clearly regularly should be parties of the appeal. At the same time it makes not much sense to have the arbitrator as respondent, as the original arbitrator is not party of the question that should be answered by the appeal, which - if the appeal is granted - is exactly the original case. If at all, the arbitrator would be a witness about what was done in the original case (even as this should be mostly unnecessary as questions about this should be possible to answer based on the documentation or words of the parties). That is how appeals in general work. Pick your law system and have a look. It's also what DRP 3.4 says. It speaks about re-opening of the original case. Not about a case against the arbitrator. Recently we had multiple filings of so called appeals (including this one), which name the original arbitrator as respondent. This is hopefully reason enough to provide such an outline so that a general understanding of this points (and comparable standard for handling of those cases) can be established. As there seems to be quite differing interpretations so far. I acknowledge that the specifics would be under the control of the respective arbitrator(s) and that arbitration team also could line out some parts, but as the policies are (currently) quite silent about some such core questions for appeals, at least some rough outline could be sensible. So IF this case is actually done in completion, I would ask for some basic clarification in that direction. If there is no case (1. relief), or if there is just a review and possible re-do of the original case (2. relief), there is no need for further clarification as then there would be some precedence in that direction. III. Additionally I would like to add a partial defence As from my perspective most elements of the dispute are bare of any sensible logic. They are based on me not following a statement from another member which I cannot even remember that it was given. And which clearly was not entered in the context of the original case. Because of this I have issues to formulate a defence to the bigger part of the dispute. For this I would have to wait until the claimant has added his evidence and argumentation to the case. But I believe that I have handled my case as closely to DRP, SP, SM, arbitration lessons, arbitration tradition and ABC procedures as it was possible in the respective situations and also with consent of the parties and the CM, where I had to leave the clear guidance of those rule-sets. This explicitly also covers the initial phase of selection of CM and A, which was discussed with both parties in person. As well as anything else that was written in the init mail, before it was send. I took care that both parties confirmed that they understood all elements that were stated in the init mail. Which was done in person. As I did not know that this would be of specific relevance (and as I assumed that it was just natural for any arbitrator in such a situation and also that a confirmation given before the other party and the arbitrator would not be questioned later), it was not noted specifically in the case file. Especially as agreement is regularly assumed in such situations, if no disagreement is voiced. No disagreement with the selection of CM and A was ever voiced while the case was running or while it was closed in between. Also at the initial phase of the case, the possible interference of the ruling of another case was much more in the focus, which took priority in the documentation effort. If necessary I would be able to explain the selection of CM and Arbitrator of that case. But I believe that even if there would have been an issue with the selection of CM and Arbitrator, this would have been healed by the fact that the parties accepted the CM and A when the init mail was discussed and by the fact that there was no challenge to this by the parties while the case was running. This later acceptance of the CM and Arbitrator is the relevant part, here. (Just as coincidence, while DRP is silent about this, again UNCITRAL states the same, that it is not possible to challenge a case based on issues with the arbitrator later if they are not named, directly, when they became known. I'm sure that NSW procedural law also has according provisions, German and related law systems have this.) Further it is hard to neglect things that were never brought up while the case was open. I also cannot see any evidence that the case was extended out of scope. But any specific defence to anything above, has to wait until according evidence is provided by the claimant. But regarding the allegation that my ruling was a defamatory statement, I believe it relevant and in the interest of the community that I challenge this with a defence in the following directions: (NSW) DEFAMATION ACT 2005 - SECT 27: Defence of absolute privilege http://www.austlii.edu.au/au/legis/nsw/consol_act/da200599/s27.html or if it does not apply: (NSW) DEFAMATION ACT 2005 - SECT 28: Defence for publication of public documents http://www.austlii.edu.au/au/legis/nsw/consol_act/da200599/s28.html I am not sure if an arbitration falls under SECT 27, so I probably could not proof that. But the ruling was a judgement of an "arbitration tribunal" and by this a public document in the sense of SECT 28 (4)(b). So far there seems to be agreement that the ruling was a judgement of an arbitration tribunal. (If this would be challenged I would probably like to raise additional defences, but at the moment I don't know enough about the allegations, to add more specific defences.) A ruling is a ruling and not just a statement. And a possible ruling in an ABC just has to be that the respondent is not a reliable candidate for the requested job. As this is one of the core questions of the ABC. If such an answer would not be possible to give, an ABC would just not be possible to do. Any party who agrees to an ABC over themselves accepts this possibility. Actually this is also a core element of the ABC as such. Even as a negative ABC may imply something negative about the respondent of the ABC, the ruling - if not written in an unnecessary and unusual defaming language - is not defamatory as such. (And also not just "statement".) IV. comment about possible (probably irrelevant) misunderstanding in original ruling Last but not least, I admit that a specific point of the ruling of a20150823.1 could be understood as an unnecessary and unusual hardship against the respondent of that case (even as I doubt that the claimant has realised this): "3.3. Until then, all membership rights of the respondent are suspended. This includes but is not limited to the right to USE, RELY, OFFER or CREATE any CAcert certificate or to participate in Policy Group. For anything but running arbitration cases he has to be treated as a Non-Related Person and former member." I realise that this could be interpreted as if he would not be allowed to USE any CAcert certificates further. This was not the intention of that part of the ruling. The intention was to remove any specific rights to USE, RELY, OFFER or CREATE that is connected to the membership. The rights of a NRP should not be touched. My intention was to express that the rights to USE, RELY, OFFER, CREATE be reduced to those of a NRP. Which as far as I remember is to USE if RDL is accepted. If there was some misunderstanding in that part, it was not intentional and I would not mind if some explanation / correction would be done. Even as I believe that the complete paragraph shows the intention which I had in mind. But if necessary that point could easily be clarified by an additional note to my case file. However I doubt that the current dispute is about this point. I accept CCA and DRP. Eva Stöwe, CARS  https://www.cacert.org/policy/DisputeResolutionPolicy.html  https://wiki.cacert.org/Audit/RA-Audit/Team  https://www.cacert.org/policy/SecurityPolicy.html  http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf  https://wiki.cacert.org/Arbitrations/Training/Lesson04  https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2016/152_Ns_59_15_Urteil_20160728.html  https://www.cacert.org/policy/RootDistributionLicense.html Kind regards,
Parts within  anonymised.
Note 1 by iCM: The case was not filed with firstname.lastname@example.org but with DRO who then fowarded it to support. The dispute/mail was also addressing the DRO and not the arbitrators. The last sentence in theory also could be interpreted in a manner that no arbitrator should see that case prior to opening of that case (however that should work), so that the case actually was intended to be filed with DRO instead of with arbitration team. There may be an issue with duly filing because of this.
- Note 2 by iCM: Please review the list of respondents. It's unclear whom the claimant considers to be a respondent, as he speaks about "affected Arbitrators" in the last sentence, so it is possible that he aims the case at others beside of Eva Stöwe. But those are not clearly named in the dispute mail.
The claimant has failed to acknowledge both the initial mail from the CM and a follow-up from the arbitrator. This in itself is sufficient to dismiss the appeal. Under CCA, any party to an arbitration is required to actively assist the arbitrator of the case, part of which is confirming their acceptance of both CCA and DRP. The arbitrator notes that this has not been done which is an implicit rejection of CAcert's policies.
The arbitrator notes that a lot of the claim is based on UNCITRAL - this is totally irrelevant to this case. Whilst CAcert's DRP may be based on UNCITRAL, DRP is a stand alone document. An arbitrator may choose to follow UNCITRAL in areas undefined within DRP, he/she is under no obligation so to do. This means that all of the claimant's points based solely on UNCITRAL have to be disregarded.
In particular, DRP does not allow for choice of arbitrator. This is not unusual - in almost all judicial processes the claimant cannot "select" an individual judge; the most that can be done is to select the place that the case is heard as was recently done in the US case raised against President Trump's allegedly anti-moslem travel restrictions.
Dealing with the other specific points raised and considering them in the context of an appeal which has to establish at least one of clear injustices, egregious behaviour or unconscionable Rulings:-
1) CAcert relies on its arbitrators and gives them exceedingy wide authority. It is not unusual for an arbitrator to consider multiple cases both jointly and seperately. In particular, a number of cases involving the claimant were open and being dealt with by the same arbitrator and the claimant was asked on a number of occasions to confirm his acceptance of CCA and DRP. As far as this arbitrator can see, this did not happen (as also in this appeal case). This gave prima facie evidence sufficient to warrant the previous arbitrator's decision to revoke the certificates and block the account.
2) UNCITRAL is not relevant here (sic) - only DRP. There is no right to select or reject arbitrators by any party under DRP
3) It is possible that DRP was not followed here - however all that is stated in the documention referenced is that Eva was the arbitrator and Philipp the CM - there is no indication therein that Philipp did not select Eva as (A). (There may be some merit in arbitrators selecting cases that they wish to work on based on their interests and knowledge, but that is for another time and place.) This is also not particularly relevant to the case as, given the limited number of active arbitrators, it is likely that Eva would have been appointed as the arbitrator anyway.
4) Reviewing the appealed case and other related cases, it is clear that the claimant had failed, despite repeated requests, to confirm his acceptance of CCA and DRP. This, in itself, is sufficient to make it necessary to consider more serious measures including certificate revocation to protect CAcert.
Overall, and particularly given the lack of response from the claimant, I fail to find any evidence of clear injustices, egregious behaviour or unconscionable Rulings - and I therefore dismiss this appeal.
18 April 2017
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