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| author | INOPIAE <inopiae@cacert.org> | 2013-01-17 22:28:58 +0100 |
|---|---|---|
| committer | Benny Baumann <BenBE@geshi.org> | 2013-01-18 00:25:04 +0100 |
| commit | 4d2a86a3f71e982f261a68935b67e6a99cec514a (patch) | |
| tree | b5cfb932bf0a5b37e4700f9cc5efc8dbb0b374aa /www/policy/DisputeResolutionPolicy.php | |
| parent | aba34728a556c0e83658b91bf425d9e9d3d7af81 (diff) | |
| download | cacert-devel-4d2a86a3f71e982f261a68935b67e6a99cec514a.tar.gz cacert-devel-4d2a86a3f71e982f261a68935b67e6a99cec514a.tar.xz cacert-devel-4d2a86a3f71e982f261a68935b67e6a99cec514a.zip | |
bug 1131: moved all php file from polcy to html and exchanged all the links
Diffstat (limited to 'www/policy/DisputeResolutionPolicy.php')
| -rw-r--r-- | www/policy/DisputeResolutionPolicy.php | 797 |
1 files changed, 3 insertions, 794 deletions
diff --git a/www/policy/DisputeResolutionPolicy.php b/www/policy/DisputeResolutionPolicy.php index 40fca3a..c59c251 100644 --- a/www/policy/DisputeResolutionPolicy.php +++ b/www/policy/DisputeResolutionPolicy.php @@ -1,794 +1,3 @@ -<?='<?xml version="1.0" encoding="utf-8"?>'?> -<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.1//EN" - "http://www.w3.org/TR/xhtml11/DTD/xhtml11.dtd"> -<html xmlns="http://www.w3.org/1999/xhtml"> -<head> - <meta http-equiv="CONTENT-TYPE" content="text/html; charset=utf-8" /> - <title>Dispute Resulution Policy</title> -<style type="text/css"> -<!-- -.first-does-not-work { - color : red; -} -.comment { - color : steelblue; -} -.q { - color : green; - font-weight: bold; - text-align: center; - font-style:italic; -} -.change { - color : blue; - font-weight: bold; -} -.change2 { - color : steelblue; -} -.strike { - color : blue; - text-decoration:line-through; -} -.draftadd { - color : darkblue; - font-weight: bold; - font-style: italic; -} -.draftdrop { - color : darkblue; - text-decoration:line-through; - font-style: italic; -} ---> -</style> - -</head> -<body> - - - -<div class="comment"> -<table width="100%"> - -<tr> -<td> - Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br /> - Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br /> - <span class="draftadd">DRAFT p20110108 p20121213</span> <br /> - Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen -</a><br /> - Licence: <a style="color: steelblue" href="//wiki.cacert.org/Policy#Licence" title="this document is Copyright © CAcert Inc., licensed openly under CC-by-sa with all disputes resolved under DRP. More at wiki.cacert.org/Policy" > CC-by-sa+DRP </a><br /></td> -<td valign="top" align="right"> - <a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="/images/cacert-policy.png" alt="TTP-Assist Status - POLICY" height="31" width="88" style="border-style: none;" /></a><br /> - <a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="/images/cacert-draft.png" alt="TTP-Assist Status - DRAFT" height="31" width="88" style="border-style: none;" /></a> - -</td> -</tr> -</table> -</div> - - -<h1> Dispute Resolution Policy </h1> - -<h2 id="s0"> 0. Introduction</h2> - -<p> -This is the Dispute Resolution Policy -<span class="draftdrop">for CAcert</span> -<span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>. -Disputes arising out of -operations by CAcert -<span class="draftadd">Inc</span> -and interactions between -<span class="draftadd"> -Members -</span> -may be addressed through this policy. -This document also presents the rules for -resolution of disputes. -</p> - -<h3 id="s0.1"> 0.1 Nature of Disputes </h3> - -<p> -Disputes include: -</p> - -<ul><li> - Requests for non-routine support actions. - CAcert support team has no authority to - act outside the normal support facilities made - available to - <span class="draftadd"> - Members; - </span> - </li><li> - Classical disputes where a <span class="draftadd">Member</span> or another - assert claims and demand remedies; - </li><li> - Requests by external organisations, including - legal processes from foreign courts; - </li><li> - Events initiated for training purposes. -</li></ul> - -<h2 id="s1"> 1. Filing</h2> - -<h3 id="s1.1"> 1.1 Filing Party</h3> -<p> -Anyone may file a dispute. -In filing, they become <i>Claimants</i>. -</p> - -<h3 id="s1.2"> 1.2 Channel for Filing</h3> - -<p> -Disputes are filed by being sent to the normal -support channel of CAcert, -and a fee may be payable. -</p> - -<p> -Such fees as are imposed on filing will be specified -on the dispute resolution page of the website. -</p> - -<h3 id="s1.3"> 1.3 Case Manager</h3> -<p> -The Case Manager (CM) takes control of the filing. -</p> - -<ol><li> - CM makes an initial determination as - to whether this filing is a dispute - for resolution, or it is a request - for routine support. - </li><li> - CM logs the case and establishes such - documentation and communications support as is customary. - </li><li> - If any party acts immediately on the filing - (such as an urgent security action), - the CM names these parties to the case. - </li><li> - CM selects the Arbitrator. -</li></ol> - -<p> -The personnel within the CAcert support team -are Case Managers, by default, or as directed -by the Dispute Resolution Officer <span class="change2">(DRO)</span>. -</p> - -<h3 id="s1.4"> 1.4 Contents</h3> -<p> -The filing must specify: -</p> - -<ul><li> - The filing party(s), being the <i>Claimant(s)</i>. - </li><li> - The party(s) to whom the complaint is addressed to, - being the <i>Respondent(s)</i>. - This will be CAcert in the - case of requests for support actions. - It may be a <span class="draftadd">Member</span> (possibly unidentified) in the - case where one <span class="draftadd">Member</span> has given rise to a complaint against another. - </li><li> - The <i>Complaint</i>. - For example, a trademark has been infringed, - privacy has been breached, - or a <span class="draftadd">Member</span> has defrauded using a certificate. - </li><li> - The action(s) requested by the filing party - (technically, called the <i>relief</i>). - For example, to delete an account, - to revoke a certificate, or to stop a - trademark infringement. -</li></ul> - -<p> -If the filing is inadequate for lack of information -or for format, the Case Manager -may refile with the additional information, -attaching the original messages. -</p> - -<h3 id="s1.5"> 1.5 The Arbitrator</h3> - -<p> -The Case Manager selects the Arbitrator according -to the mechanism managed by the -<span class="change2">DRO</span> <!-- Dispute Resolution Officer --> -and approved from time to time. -This mechanism is to maintain a list of Arbitrators available for -dispute resolution. -Each selected Arbitrator has the right to decline the dispute, -and should decline a dispute with which there exists a conflict -of interest. -The reason for declining should be stated. -If no Arbitrator accepts the dispute, the case is -closed with status "declined." -</p> - -<p> -Arbitrators are experienced Assurers <span class="draftdrop">of CAcert</span>. -They should be independent and impartial, including -of CAcert <span class="draftadd">Inc.</span> itself where it becomes a party. -</p> - -<h2 id="s2"> 2. The Arbitration</h2> - - -<h3 id="s2.1"> 2.1 Authority</h3> - -<p> -The Board of CAcert <span class="draftadd">Inc.</span> and the -<span class="draftadd"> -Members of the Community -</span> - vest in Arbitrators -full authority to hear disputes and deliver rulings -which are binding on CAcert <span class="draftadd">Inc.</span> and the -<span class="draftadd"> -Members. -</span> -</p> - - -<h3 id="s2.2"> 2.2 Preliminaries</h3> - -<p> -The Arbitrator conducts some preliminaries: -</p> - -<ul><li> - The Arbitrator reviews the available documentation - and affirms the rules of dispute resolution. - Jurisdiction is established, see below. - </li><li> - The Arbitrator affirms the governing law (NSW, Australia). - The Arbitrator may select local law and local - procedures where Claimants and all Respondents - agree, are under such jurisdiction, and it is deemed - more appropriate. - However, this is strictly limited to those parties, - and especially, CAcert <span class="draftadd">Inc.</span> and other parties - remain under the governing law. - </li><li> - The Arbitrator reviews the Respondents and Claimants - with a view to dismissal or joining of additional parties. - E.g., support personnel may be joined if emergency action was - taken. - </li><li> - Any parties that are not - <span class="draftadd"> - Members - </span> - and are not bound by the - <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span> - are given the opportunity to enter into - CAcert and be bound by the - <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span> - and these rules of arbitration. - If - <!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> --> - these Non-Related Persons (NRPs) - remain outside, - their rights and remedies under CAcert's policies - and forum are strictly limited to - <span class="strike">that</span> <span class="change2">those</span> - specified in the - <span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>. - NRPs - may proceed with Arbitration subject to preliminary orders - of the Arbitrator. - </li><li> - Participating - <span class="draftadd"> - Members - </span> - may not resign - <span class="change2"> - from the Community - </span> - until the completion of the case. - </li><li> - The Arbitrator confirms that all parties accept - the forum of dispute resolution. - This is especially important where a - <span class="draftadd"> - Member - </span> - might be - in a country with no Arbitration Act in law, or - where there is reason to believe that a party might - go to an external court. - </li><li> - The Arbitrator confirms that parties are representing - themselves. Parties are entitled to be legally - represented, but are not encouraged to do so, - bearing in mind the volunteer nature of the - organisation and the size of the dispute. - If they do so<span class="change2">,</span> - they must declare such, including any changes. - </li><li> - The Arbitrator may appoint experienced Assurers - to assist and represent parties, especially for NRPs. - The Case Manager must not provide such assistance. - </li><li> - The Arbitrator is bound to maintain the balance - of legal fairness. - </li><li> - The Arbitrator may make any preliminary orders, - including protection orders and orders referring - to emergency actions already taken. - </li><li> - The Arbitrator may request any written pleadings, - counterclaims, and/or statements of defence. -</li></ul> - - -<h3 id="s2.3"> 2.3 Jurisdiction </h3> - -<p> -Jurisdiction - the right or power to hear and rule on -disputes - is initially established by clauses in the -<span class="draftadd"> -CAcert Community Agreement. -</span> -The agreement must establish: -</p> - -<ul><li> - That all Parties agree to binding Arbitration - in CAcert's forum of dispute resolution; - </li><li> - for all disputes relating to activities within - CAcert, issued certificates, roles and actions, etc; - </li><li> - as defined by these rules, including the selection - of a single Arbitrator; - </li><li> - under the Law of NSW, Australia; and - </li><li> - the Parties keep email accounts in good working order. -</li></ul> - -<p> -An external court may have ("assert") jurisdiction to decide on -issues such as trademark, privacy, contract and fraud, -and may do so with legal remedies. -These are areas where jurisdiction may need -to be considered carefully: -</p> - -<ul><li> - Where NRPs, being not Members of CAcert and not - bound by agreement, are parties to the dispute. - E.g., intellectual property disputes may involve - NRPs and their trademarks; - </li><li> - criminal actions or actions likely to result in criminal - proceedings, - e.g., fraud; - </li><li> - Contracts between - <span class="draftadd"> - Members - </span> - that were formed without - a clause to seek arbitration in the forum; - </li><li> - Areas where laws fall outside the Arbitration Act, - such as privacy; - </li><li> - Legal process (subpoenas, etc) delivered by - an external court of "competent jurisdiction." -</li></ul> - -<p> -The Arbitrator must consider jurisdiction and rule on a -case by case basis whether jurisdiction is asserted, -either wholly or partially, or declines to hear the case. -In the event of asserting -jurisdiction, and a NRP later decides to pursue rights in -another forum, the Arbitrator should seek the agreement -of the NRP to file the ruling as part of the new case. -</p> - -<h3 id="s2.4"> 2.4 Basis in Law </h3> - -<p> -Each country generally has an Arbitration Act -that elevates Arbitration as a strong dispute -resolution forum. -The Act generally defers to Arbitration -if the parties have so agreed. -That is, as - <span class="draftadd"> - Members - </span> -<span class="draftdrop">users of CAcert</span>, -you agree to resolve -all disputes before CAcert's forum. -This is sometimes called <i>private law</i> -or <i>alternative dispute resolution</i>. -</p> - -<p> -As a matter of public policy, courts will generally -refer any case back to Arbitration. - <span class="draftadd"> - Members - </span> -should understand that they will have -strictly limited rights to ask the courts to -seek to have a case heard or to override a Ruling. -</p> - - -<h3 id="s2.5"> 2.5 External Courts </h3> - -<p> - When an external court claims and asserts its jurisdiction, - and issues a court order, subpoena or other service to CAcert, - the CM files the order as a dispute, with the external court - as <i>Claimant</i>. - The CM and other support staff are granted no authority to - act on the basis of any court order, and ordinarily - must await the order of the Arbitrator - (which might simply be a repeat of the external court order). -</p> - -<p> - The Arbitrator establishes the bona fides of the - court, and rules. - The Arbitrator may rule to reject the order, - for jurisdiction or other reasons. - By way of example, if all Parties are - <span class="draftadd"> - Members, - </span> - then jurisdiction more normally falls within the forum. - If the Arbitrator rules to reject, - he should do so only after consulting with CAcert <span class="draftadd">Inc.</span> counsel. - The Arbitrator's jurisidiction is ordinarily that of - dealing with the order, and - not that which the external court has claimed to. -</p> - - -<h3 id="s2.6"> 2.6 Process</h3> - -<p> -The Arbitrator follows the procedure: -</p> - - -<ol><li> - Establish the facts. - The Arbitrator collects the evidence from the parties. - The Arbitrator may order CAcert <span class="draftadd">Inc.</span> or - <span class="draftadd"> - Members - </span> - under jurisdiction to provide support or information. - The Arbitrator may use email, phone or face-to-face - meetings as proceedings. - </li><li> - Apply the Rules of Dispute Resolution, - the policies of CAcert and the governing law. - The Arbitrator may request that the parties - submit their views. - The Arbitrator also works to the mission of CAcert, - the benefit of all - <span class="draftadd"> - Members - </span> - , and the community as a whole. - The Arbitrator may - <span class="draftadd"> - seek - </span> - any assistance. - </li><li> - Makes a considered Ruling. -</li></ol> - -<h2 id="s3"> 3. The Ruling</h2> - -<h3 id="s3.1"> 3.1 The Contents </h3> - -<p> -The Arbitrator records: -</p> - -<ol><li> - The Identification of the Parties, - </li><li> - The Facts, - </li><li> - The logic of the rules and law, - </li><li> - The directions and actions to be taken by each party - (the ruling). - </li><li> - The date and place that the ruling is rendered. -</li></ol> - - -<h3 id="s3.2"> 3.2 Process </h3> -<p> -Once the Ruling is delivered, the case is closed. -The Case Manager is responsible for recording the -Ruling, publishing it, and advising <span class="draftadd">Members</span>. -</p> - -<p> -Proceedings are ordinarily private. -The Ruling is ordinarily published, -within the bounds of the Privacy Policy. -The Ruling is written in English. -</p> - -<p> -Only under exceptional circumstances can the -Arbitrator declare the Ruling private <i>under seal</i>. -Such a declaration must be reviewed in its entirety -by the Board, -and the Board must confirm or deny that declaration. -If it confirms, the existence of any Rulings under seal -must be published to the - <span class="draftadd"> - Members - </span> -in a timely manner -(within days). -</p> - -<h3 id="s3.3"> 3.3 Binding and Final </h3> - -<p> -The Ruling is -<!-- (DRAFT p20110108) --> -<span class="draftadd">ordinarily final and binding </span> -<span class="draftdrop">binding and final</span> -on CAcert <span class="draftadd">Inc.</span> and all - <span class="draftadd"> - Members - </span> -. -Ordinarily, all - <span class="draftadd"> - Members - </span> - agree to be bound by this dispute -resolution policy. - <span class="draftadd"> - Members - </span> -must declare in the Preliminaries -any default in agreement or binding. -</p> - -<p> -If a person who is not a - <span class="draftadd"> - Member - </span> -is a party to the dispute, -then the Ruling is not binding and final on that person, -but the Ruling must be presented in filing any dispute -in another forum such as the person's local courts. -</p> - -<h3 id="s3.4"> 3.4 <span class="draftadd">Review for Appeal (DRAFT p20110108)</span> <span class="draftdrop">Re-opening the Case or Appeal</span> </h3> - -<p> -In the <span class="draftadd">event</span> <span class="draftdrop">case</span> of clear injustices, egregious behaviour or -unconscionable Rulings, -<span class="draftadd"> -a review may be requested by filing a dispute (DRAFT p20110108). -</span> -<span class="draftdrop"> -parties may seek to re-open the -case by filing a dispute. -</span> -The new Arbitrator reviews the new dispute, -re-examines and reviews the entire case, then rules on -whether the case may be re-opened or not. -</p> - -<p> -<span class="draftadd"> -If the Review Arbitrator rules the case be re-opened, -then the Review Arbitrator refers the case to an Appeal Panel of 3. -The Appeal Panel is led by a Senior Arbitrator, -and is formed according to procedures established -by the DRO from time to time. -The Appeal Panel hears the case and delivers a final and binding Ruling. - (DRAFT p20110108) -</span> -<span class="draftdrop"> -If the new Arbitrator rules the case be re-opened, -then it is referred to the Board of CAcert Inc. -The Board hears the case and delivers a final -and binding Ruling. -</span> -</p> - -<h3 id="s3.5"> 3.5 Liability </h3> - -<p> -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. -All liability of the Arbitrators, CAcert <span class="draftadd">Inc.</span>, its officers and its -employees (including Case Manager) -for any other act or omission in connection with -arbitration proceedings is excluded, provided such acts do not -constitute an intentional or grossly negligent breach of duty. -</p> - -<p> -The above provisions may only be overridden by -appeal process - (by means of a new dispute causing referral to the Board). - -</p> - -<h3 id="s3.6"> 3.6 Remedies </h3> - -<p> -The Arbitrator generally instructs using internal remedies, -that is ones that are within the general domain of -<span class="draftdrop">CAcert</span> -<span class="draftadd">the Community</span>, -but there are some external remedies at his disposal. -He may rule and instruct any of the parties on these issues. -</p> - -<ul><li> - "community service" typically including - <ul><li> - attend and assure people at trade shows / open source gatherings, - </li><li> - writing documentation - </li><li> - serve in <span class="change2">a</span> role - support, dispute arbitration - </li></ul> - or others as decided. - - </li><li> - Fined by loss of assurance points, which may result - in losing Assurer or Assured status. - - </li><li> - Retraining in role. - - </li><li> - Revoking of any certificates. - - </li><li> - Monetary fine up to the liability cap established for - each party as described in the - <span class="draftadd"> - CAcert Community Agreement. - </span> - - </li><li> - Exclusion from community. - - </li><li> - Reporting to applicable authorities. - - </li><li> - Changes to policies and procedures. - -</li></ul> - -<p> -The Arbitrator is not limited within the general domain -of CAcert, and may instruct novel remedies as seen fit. -Novel remedies outside the domain may be routinely -confirmed by the Board by way of appeal process, -in order to establish precedent. - -</p> - -<h2 id="s4"> 4. Appendix</h2> - - -<h3 id="s4.1"> 4.1 The Advantages of this Forum </h3> -<p> -The advantage of this process for - <span class="draftadd"> - Members - </span> - is: -</p> - -<ul><li> - CAcert and <span class="draftadd">Members</span> operate across many jurisdictions. - Arbitration allows us to select a single set of - rules across all jurisdictions. - </li><li> - Arbitration allows CAcert to appropriately separate - out the routine support actions from difficult dispute - actions. Support personnel have no authority to - act, the appropriately selected Arbitrator has all - authority to act. - Good governance is thus maintained. - </li><li> - This forum allows CAcert <span class="draftadd">Members</span> to look after themselves - in a community, without exposing each other to potentially - disastrous results in strange courts from foreign lands. - </li><li> - By volunteering to resolve things "in-house" the costs - are reduced. - </li><li> - Even simple support issues such as password changing - can be improved by treating as a dispute. A clear - chain of request, analysis, ruling and action can be established. - </li><li> - CAcert Assurers can develop the understanding and the rules - for sorting out own problems far better than courts or - other external agencies. -</li></ul> - -<h3 id="s4.2"> 4.2 The Disadvantages of this Forum </h3> - -<p> -Some disadvantages exist. -</p> - -<ul><li> - <span class="draftadd">Members</span> may have their rights trampled over. - In such a case, the community should strive to - re-open the case - and refer it to the board. - - - </li><li> - <span class="draftadd">Members</span> may feel overwhelmed by the formality - of the process. - It is kept formal so as to establish good and proper - authority to act; otherwise, support and other - people in power may act without thought and with - damaging consequences. - </li><li> - 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. -</li></ul> - -<h3 id="s4.3"> 4.3 Process and Flow </h3> - -<p> -To the extent reasonable, the Arbitrator conducts -the arbitration as with any legal proceedings. -This means that the process and style should follow -legal tradition. -</p> - -<p> -However, the Arbitrator is unlikely to be trained in -law. Hence, common sense must be applied, and the -Arbitrator has wide latitude to rule on any particular -motion, pleading, submission. The Arbitrator's ruling -is final within the arbitration. -</p> - -<p> -Note also that many elements of legal proceedings are -deliberately left out of the rules. -</p> - - -</body> -</html> +<?php +header('Location: DisputeResolutionPolicy.html'); +exit();
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