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+<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd">
+
+<html>
+<head>
+<title>Dispute Resulution Policy</title>
+</head>
+<body>
+
+<table width="100%">
+
+<tr>
+<td> DRP </td>
+<td> </td>
+<td width="20%"> Teus Hagen </td>
+</tr>
+
+<tr>
+<td> POLICY&nbsp;<a href="http://wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a> </td>
+<td> </td>
+<td>
+ $Date: 2008-01-18 22:56:31 $
+ <!--
+ to get this to work, we have to do this:
+ svn propset svn:keywords "Date" PolicyOnPolicy.html
+ except it does not work through the website.
+ -->
+</td>
+</tr>
+
+<tr>
+<td> COD7 </td>
+<td> </td>
+<td> <!-- contributors --> </td>
+</tr>
+
+
+<tr> <!-- title only -->
+<td> </td>
+<td > <b>Dispute&nbsp;Resolution&nbsp;Policy</b> </td>
+<td> </td>
+</tr>
+
+</table>
+
+
+<h2> <a name="0"> 0. </a> Introduction</h2>
+
+<p>
+This is the Dispute Resolution Policy for CAcert.
+Disputes arising out of
+operations by CAcert and interactions between
+users may be addressed through this policy.
+This document also presents the rules for
+resolution of disputes.
+</p>
+
+<h3> <a name="0.1"> 0.1 </a> 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 Users;
+ </li><li>
+ Classical disputes where a User 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> <a name="1"> 1. </a> Filing</h2>
+
+<h3> <a name="1.1"> 1.1 </a> Filing Party</h3>
+<p>
+Anyone may file a dispute.
+In filing, they become <i>Claimants</i>.
+</p>
+
+<h3> <a name="1.2">1.2 </a> 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> <a name="1.3">1.3 </a> 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.
+</p>
+
+<h3> <a name="1.4">1.4 </a> 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 User (possibly unidentified) in the
+ case where one User 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 user 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> <a name="1.5">1.5 </a> The Arbitrator</h3>
+
+<p>
+The Case Manager selects the Arbitrator according
+to the mechanism managed by the 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 of CAcert.
+They should be independent and impartial, including
+of CAcert itself where it becomes a party.
+</p>
+
+<h2> <a name="2"> 2. </a> The Arbitration</h2>
+
+
+<h3> <a name="2.1">2.1 </a> Authority</h3>
+
+<p>
+The Board of CAcert and the Users vest in Arbitrators
+full authority to hear disputes and deliver rulings
+which are binding on CAcert and the Users.
+</p>
+
+
+<h3> <a name="2.2">2.2 </a> 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 and other parties
+ remains 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 personel may be joined if emergency action was
+ taken.
+ </li><li>
+ Any parties that are not Users and are not bound
+ by the CPS are given the opportunity to enter into
+ CAcert and be bound by the CPS and these rules of arbitration.
+ If these Non-Related Persons (NRPs) remain outside,
+ their rights and remedies under CAcert's policies
+ and forum are strictly limited to that specified in the
+ Non-Related Persons -- Disclaimer and Licence.
+ NRPs may proceed with Arbitration subject to preliminary orders
+ of the Arbitrator.
+ </li><li>
+ Participating Users may not resign 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 User 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 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 to 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,
+ counterclaim, and/or statements of defence.
+</li></ul>
+
+
+<h3> <a name="2.3">2.3 </a> Jurisdiction </h3>
+
+<p>
+Jurisidiction - the right or power to hear and rule on
+disputes - is initially established by clauses in the
+User agreements for all CAcert Users.
+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 Users 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> <a name="2.4">2.4 </a> 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 Users of CAcert, 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.
+Users 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> <a name="2.5">2.5 </a> 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 registered Users,
+ then jurisdiction more normally falls within the forum.
+ If the Arbitrator rules to reject,
+ he should do so only after consulting with CAcert 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> <a name="2.6">2.6 </a> 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 or Users 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 Users, and the community as a whole.
+ The Arbitrator may any assistance.
+ </li><li>
+ Makes a considered Ruling.
+</li></ol>
+
+<h2> <a name="3"> 3. </a> The Ruling</h2>
+
+<h3> <a name="3.1">3.1 </a> 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> <a name="3.2">3.2 </a> 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 users.
+</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 existance of any Rulings under seal
+must be published to the Users in a timely manner
+(within days).
+</p>
+
+<h3> <a name="3.3">3.3 </a> Binding and Final </h3>
+
+<p>
+The Ruling is binding and final on CAcert and all Users.
+Ordinarily, all Users agree to be bound by this dispute
+resolution policy. Users must declare in the Preliminaries
+any default in agreement or binding.
+</p>
+
+<p>
+If a person who is not a User 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> <a name="3.4">3.4 </a> Re-opening the Case or Appeal </h3>
+
+<p>
+In the case of clear injustices, egregious behaviour or
+unconscionable Rulings, parties may seek to re-open the
+case by filing a dispute. 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>
+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.
+</p>
+
+<h3> <a name="3.5">3.5 </a> 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, 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> <a name="3.6">3.6 </a> Remedies </h3>
+
+<p>
+The Arbitrator generally instructs using internal remedies,
+that is ones that are within the general domain of CAcert,
+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 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 Registered User Agreement.
+
+ </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 appeals process,
+in order to establish precedent.
+</p>
+
+<h2> <a name="4"> 4. </a> Appendix</h2>
+
+
+<h3> <a name="4.1">4.1 </a> The Advantages of this Forum </h3>
+<p>
+The advantage of this process for Users is:
+</p>
+
+<ul><li>
+ CAcert and Users 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 Users 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> <a name="4.2">4.2 </a> The Disadvantages of this Forum </h3>
+
+<p>
+Some disadvantages exist.
+</p>
+
+<ul><li>
+ Users 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>
+ Users 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> <a name="4.3">4.3 </a> 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>