summaryrefslogtreecommitdiff
path: root/www/policy/DisputeResolutionPolicy.html
blob: a1d687d95fcc4abcfdb23682d3ff71572e236e8c (plain)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
638
639
640
641
642
643
644
645
646
647
648
649
650
651
652
653
654
655
656
657
658
659
660
661
662
663
664
665
666
667
668
669
670
671
672
673
674
675
676
677
678
679
680
681
682
683
684
685
686
687
688
689
690
691
692
693
694
695
696
697
698
699
700
701
702
703
704
705
706
707
708
709
710
711
712
713
714
715
716
717
718
719
720
721
722
723
724
725
726
727
728
729
730
731
732
733
734
735
736
737
738
739
740
741
742
743
744
745
746
747
748
749
750
751
752
753
754
755
756
757
758
759
760
761
762
763
764
765
766
767
768
769
770
771
772
773
774
775
776
777
778
779
780
<!DOCTYPE html>
<html>
<head>
<meta http-equiv="Content-Type" content="text/html; charset=UTF-8" lang="en">
<title>Dispute Resulution Policy</title>
<style type="text/css">
<!--
.comment {
        color : steelblue;
}
-->
</style>
</head>
<body>



<div class="comment">
<table width="100%">

<tbody>
<tr>
<td rowspan="2">
  Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a>
<br>
  Status: POLICY <a href="https://wiki.cacert.org/PolicyDecisions#p20140731">p20140731</a>
<br>
   Created: m20070919.3
<br>
   Changed: p20110108, p20121213, p20130116

<br>
  Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
</a>
<br>
   Licence: <a style="color: steelblue" href="https://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>
</td>
<td align="right" valign="top">
  <a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
<a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
<img src="images/cacert-policy.png" alt="DRP Status - POLICY" style="border-style: none;" height="31" width="88">
</a>
</td>
</tr>
</tbody>
</table>
</div>


<h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>

<h2 id="g0.1">0. Introduction</h2>

<p>
This is the Dispute Resolution Policy
for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
Disputes arising out of
operations by CAcert
Inc
and interactions between
Members
may be addressed through this policy.
This document also presents the rules for
resolution of disputes.
</p>

<h3 id="g0.1.1">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
    Members;
  </li>
<li>
    Classical disputes where a Member 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="g0.2">1. Filing</h2>

<h3 id="g0.2.1">1.1. Filing Party</h3>
<p>
Anyone may file a dispute.
In filing, they become <i>Claimants</i>.
</p>

<h3 id="g0.2.2">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="g0.2.3">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 (DRO).
</p>

<h3 id="g0.2.4">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 Member (possibly unidentified) in the
    case where one Member 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 Member 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="g0.2.5">1.5. The Arbitrator</h3>

<p>
The Case Manager selects the Arbitrator according
to the mechanism managed by the
DRO
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.
They should be independent and impartial, including
of CAcert Inc. itself where it becomes a party.
</p>

<h2 id="g0.3">2. The Arbitration</h2>


<h3 id="g0.3.1">2.1. Authority</h3>

<p>
The Board of CAcert Inc. and the
Members of the Community
 vest in Arbitrators
full authority to hear disputes and deliver rulings
which are binding on CAcert Inc. and the
Members.
</p>


<h3 id="g0.3.2">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 Inc. 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
   Members
   and are not bound by the
   CCA
   are given the opportunity to enter into
   CAcert and be bound by the
   CCA
   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
   those
   specified in the
   Root Distribution License.
   NRPs
   may proceed with Arbitration subject to preliminary orders
   of the Arbitrator.
  </li>
<li>
   Participating
   Members
   may not resign
   from the Community
   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
   Member
   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 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="g0.3.3">2.3. Jurisdiction </h3>

<p>
Jurisdiction - the right or power to hear and rule on
disputes - is initially established by clauses in the
CAcert Community Agreement.
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
    Members
    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="g0.3.4">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
   Members
,
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.
Members
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="g0.3.5">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
    Members,
    then jurisdiction more normally falls within the forum.
    If the Arbitrator rules to reject,
    he should do so only after consulting with CAcert Inc. 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="g0.3.6">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 Inc. or
    Members
    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
    Members
    , and the community as a whole.
    The Arbitrator may
    seek
    any assistance.
  </li>
<li>
    Makes a considered Ruling.
</li>
</ol>

<h2 id="g0.4">3. The Ruling</h2>

<h3 id="g0.4.1">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="g0.4.2">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 Members.
</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
Members
in a timely manner
(within days).
</p>

<h3 id="g0.4.3">3.3. Binding and Final </h3>

<p>
The Ruling is
ordinarily final and binding
on CAcert Inc.and all
   Members
.
Ordinarily, all
   Members
 agree to be bound by this dispute
resolution policy.
   Members
must declare in the Preliminaries
any default in agreement or binding.
</p>

<p>
If a person who is not a
   Member
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="g0.4.4">3.4. Review for Appeal</h3>

<p>
In the eventof clear injustices, egregious behaviour or
unconscionable Rulings,
a review may be requested 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 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.
</p>

<h3 id="g0.4.5">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 Inc., 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="g0.4.6">3.6. Remedies </h3>

<p>
The Arbitrator generally instructs using internal remedies,
that is ones that are within the general domain of
the Community,
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 a 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
    CAcert Community 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 appeal process,
in order to establish precedent.

</p>

<h2 id="g0.5">4. Appendix</h2>


<h3 id="g0.5.1">4.1. The Advantages of this Forum </h3>
<p>
The advantage of this process for
   Members
 is:
</p>

<ul>
<li>
    CAcert and Members 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 Members 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="g0.5.2">4.2. The Disadvantages of this Forum </h3>

<p>
Some disadvantages exist.
</p>

<ul>
<li>
     Membersmay 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>
     Members 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="g0.5.3">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>