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diff --git a/www/policy/DisputeResolutionPolicy.php b/www/policy/DisputeResolutionPolicy.php new file mode 100644 index 0000000..a97789b --- /dev/null +++ b/www/policy/DisputeResolutionPolicy.php @@ -0,0 +1,639 @@ +<!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 <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 Resolution 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> |