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38 Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a>
39 <br>
40 Status: POLICY <a href="https://wiki.cacert.org/PolicyDecisions#p20140731">p20140731</a>
41 <br>
42 Created: m20070919.3
43 <br>
44 Changed: p20110108, p20121213, p20130116
45
46 <br>
47 Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
48 </a>
49 <br>
50 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>
51 </td>
52 <td align="right" valign="top">
53 <a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
54 <img src="images/cacert-policy.png" alt="TTP-Assist Status - POLICY" style="border-style: none;" height="31" width="88" uri="file:///home/iphigenie/data/CAcert/Policy/Dispute%20Resulution%20Policy_draft_files/cacert-policy.png">
55 </a>
56 </td>
57 </tr>
58 </tbody>
59 </table>
60 </div>
61
62
63 <h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>
64
65 <h2 id="g0.1">Introduction</h2>
66
67 <p>
68 This is the Dispute Resolution Policy
69 for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
70 Disputes arising out of
71 operations by CAcert
72 Inc
73 and interactions between
74 Members
75 may be addressed through this policy.
76 This document also presents the rules for
77 resolution of disputes.
78 </p>
79
80 <h3 id="g0.1.1">Nature of Disputes </h3>
81
82 <p>
83 Disputes include:
84 </p>
85
86 <ul>
87 <li>
88 Requests for non-routine support actions.
89 CAcert support team has no authority to
90 act outside the normal support facilities made
91 available to
92 Members;
93 </li>
94 <li>
95 Classical disputes where a Member or another
96 assert claims and demand remedies;
97 </li>
98 <li>
99 Requests by external organisations, including
100 legal processes from foreign courts;
101 </li>
102 <li>
103 Events initiated for training purposes.
104 </li>
105 </ul>
106
107 <h2 id="g0.2">Filing</h2>
108
109 <h3 id="g0.2.1">Filing Party</h3>
110 <p>
111 Anyone may file a dispute.
112 In filing, they become <i>Claimants</i>.
113 </p>
114
115 <h3 id="g0.2.2">Channel for Filing</h3>
116
117 <p>
118 Disputes are filed by being sent to the normal
119 support channel of CAcert,
120 and a fee may be payable.
121 </p>
122
123 <p>
124 Such fees as are imposed on filing will be specified
125 on the dispute resolution page of the website.
126 </p>
127
128 <h3 id="g0.2.3">Case Manager</h3>
129 <p>
130 The Case Manager (CM) takes control of the filing.
131 </p>
132
133 <ol>
134 <li>
135 CM makes an initial determination as
136 to whether this filing is a dispute
137 for resolution, or it is a request
138 for routine support.
139 </li>
140 <li>
141 CM logs the case and establishes such
142 documentation and communications support as is customary.
143 </li>
144 <li>
145 If any party acts immediately on the filing
146 (such as an urgent security action),
147 the CM names these parties to the case.
148 </li>
149 <li>
150 CM selects the Arbitrator.
151 </li>
152 </ol>
153
154 <p>
155 The personnel within the CAcert support team
156 are Case Managers, by default, or as directed
157 by the Dispute Resolution Officer (DRO).
158 </p>
159
160 <h3 id="g0.2.4">Contents</h3>
161 <p>
162 The filing must specify:
163 </p>
164
165 <ul>
166 <li>
167 The filing party(s), being the <i>Claimant(s)</i>.
168 </li>
169 <li>
170 The party(s) to whom the complaint is addressed to,
171 being the <i>Respondent(s)</i>.
172 This will be CAcert in the
173 case of requests for support actions.
174 It may be a Member (possibly unidentified) in the
175 case where one Member has given rise to a complaint against another.
176 </li>
177 <li>
178 The <i>Complaint</i>.
179 For example, a trademark has been infringed,
180 privacy has been breached,
181 or a Member has defrauded using a certificate.
182 </li>
183 <li>
184 The action(s) requested by the filing party
185 (technically, called the <i>relief</i>).
186 For example, to delete an account,
187 to revoke a certificate, or to stop a
188 trademark infringement.
189 </li>
190 </ul>
191
192 <p>
193 If the filing is inadequate for lack of information
194 or for format, the Case Manager
195 may refile with the additional information,
196 attaching the original messages.
197 </p>
198
199 <h3 id="g0.2.5">The Arbitrator</h3>
200
201 <p>
202 The Case Manager selects the Arbitrator according
203 to the mechanism managed by the
204 DRO
205 and approved from time to time.
206 This mechanism is to maintain a list of Arbitrators available for
207 dispute resolution.
208 Each selected Arbitrator has the right to decline the dispute,
209 and should decline a dispute with which there exists a conflict
210 of interest.
211 The reason for declining should be stated.
212 If no Arbitrator accepts the dispute, the case is
213 closed with status "declined."
214 </p>
215
216 <p>
217 Arbitrators are experienced Assurers.
218 They should be independent and impartial, including
219 of CAcert Inc. itself where it becomes a party.
220 </p>
221
222 <h2 id="g0.3">The Arbitration</h2>
223
224
225 <h3 id="g0.3.1">Authority</h3>
226
227 <p>
228 The Board of CAcert Inc. and the
229 Members of the Community
230 vest in Arbitrators
231 full authority to hear disputes and deliver rulings
232 which are binding on CAcert Inc. and the
233 Members.
234 </p>
235
236
237 <h3 id="g0.3.2">Preliminaries</h3>
238
239 <p>
240 The Arbitrator conducts some preliminaries:
241 </p>
242
243 <ul>
244 <li>
245 The Arbitrator reviews the available documentation
246 and affirms the rules of dispute resolution.
247 Jurisdiction is established, see below.
248 </li>
249 <li>
250 The Arbitrator affirms the governing law (NSW, Australia).
251 The Arbitrator may select local law and local
252 procedures where Claimants and all Respondents
253 agree, are under such jurisdiction, and it is deemed
254 more appropriate.
255 However, this is strictly limited to those parties,
256 and especially, CAcert Inc. and other parties
257 remain under the governing law.
258 </li>
259 <li>
260 The Arbitrator reviews the Respondents and Claimants
261 with a view to dismissal or joining of additional parties.
262 E.g., support personnel may be joined if emergency action was
263 taken.
264 </li>
265 <li>
266 Any parties that are not
267 Members
268 and are not bound by the
269 CCA
270 are given the opportunity to enter into
271 CAcert and be bound by the
272 CCA
273 and these rules of arbitration.
274 If
275 these Non-Related Persons (NRPs)
276 remain outside,
277 their rights and remedies under CAcert's policies
278 and forum are strictly limited to
279 those
280 specified in the
281 Root Distribution License.
282 NRPs
283 may proceed with Arbitration subject to preliminary orders
284 of the Arbitrator.
285 </li>
286 <li>
287 Participating
288 Members
289 may not resign
290 from the Community
291 until the completion of the case.
292 </li>
293 <li>
294 The Arbitrator confirms that all parties accept
295 the forum of dispute resolution.
296 This is especially important where a
297 Member
298 might be
299 in a country with no Arbitration Act in law, or
300 where there is reason to believe that a party might
301 go to an external court.
302 </li>
303 <li>
304 The Arbitrator confirms that parties are representing
305 themselves. Parties are entitled to be legally
306 represented, but are not encouraged to do so,
307 bearing in mind the volunteer nature of the
308 organisation and the size of the dispute.
309 If they do so,
310 they must declare such, including any changes.
311 </li>
312 <li>
313 The Arbitrator may appoint experienced Assurers
314 to assist and represent parties, especially for NRPs.
315 The Case Manager must not provide such assistance.
316 </li>
317 <li>
318 The Arbitrator is bound to maintain the balance
319 of legal fairness.
320 </li>
321 <li>
322 The Arbitrator may make any preliminary orders,
323 including protection orders and orders referring
324 to emergency actions already taken.
325 </li>
326 <li>
327 The Arbitrator may request any written pleadings,
328 counterclaims, and/or statements of defence.
329 </li>
330 </ul>
331
332
333 <h3 id="g0.3.3">Jurisdiction </h3>
334
335 <p>
336 Jurisdiction - the right or power to hear and rule on
337 disputes - is initially established by clauses in the
338 CAcert Community Agreement.
339 The agreement must establish:
340 </p>
341
342 <ul>
343 <li>
344 That all Parties agree to binding Arbitration
345 in CAcert's forum of dispute resolution;
346 </li>
347 <li>
348 for all disputes relating to activities within
349 CAcert, issued certificates, roles and actions, etc;
350 </li>
351 <li>
352 as defined by these rules, including the selection
353 of a single Arbitrator;
354 </li>
355 <li>
356 under the Law of NSW, Australia; and
357 </li>
358 <li>
359 the Parties keep email accounts in good working order.
360 </li>
361 </ul>
362
363 <p>
364 An external court may have ("assert") jurisdiction to decide on
365 issues such as trademark, privacy, contract and fraud,
366 and may do so with legal remedies.
367 These are areas where jurisdiction may need
368 to be considered carefully:
369 </p>
370
371 <ul>
372 <li>
373 Where NRPs, being not Members of CAcert and not
374 bound by agreement, are parties to the dispute.
375 E.g., intellectual property disputes may involve
376 NRPs and their trademarks;
377 </li>
378 <li>
379 criminal actions or actions likely to result in criminal
380 proceedings,
381 e.g., fraud;
382 </li>
383 <li>
384 Contracts between
385 Members
386 that were formed without
387 a clause to seek arbitration in the forum;
388 </li>
389 <li>
390 Areas where laws fall outside the Arbitration Act,
391 such as privacy;
392 </li>
393 <li>
394 Legal process (subpoenas, etc) delivered by
395 an external court of "competent jurisdiction."
396 </li>
397 </ul>
398
399 <p>
400 The Arbitrator must consider jurisdiction and rule on a
401 case by case basis whether jurisdiction is asserted,
402 either wholly or partially, or declines to hear the case.
403 In the event of asserting
404 jurisdiction, and a NRP later decides to pursue rights in
405 another forum, the Arbitrator should seek the agreement
406 of the NRP to file the ruling as part of the new case.
407 </p>
408
409 <h3 id="g0.3.4">Basis in Law </h3>
410
411 <p>
412 Each country generally has an Arbitration Act
413 that elevates Arbitration as a strong dispute
414 resolution forum.
415 The Act generally defers to Arbitration
416 if the parties have so agreed.
417 That is, as
418 Members
419 ,
420 you agree to resolve
421 all disputes before CAcert's forum.
422 This is sometimes called <i>private law</i>
423 or <i>alternative dispute resolution</i>.
424 </p>
425
426 <p>
427 As a matter of public policy, courts will generally
428 refer any case back to Arbitration.
429 Members
430 should understand that they will have
431 strictly limited rights to ask the courts to
432 seek to have a case heard or to override a Ruling.
433 </p>
434
435
436 <h3 id="g0.3.5">External Courts </h3>
437
438 <p>
439 When an external court claims and asserts its jurisdiction,
440 and issues a court order, subpoena or other service to CAcert,
441 the CM files the order as a dispute, with the external court
442 as <i>Claimant</i>.
443 The CM and other support staff are granted no authority to
444 act on the basis of any court order, and ordinarily
445 must await the order of the Arbitrator
446 (which might simply be a repeat of the external court order).
447 </p>
448
449 <p>
450 The Arbitrator establishes the bona fides of the
451 court, and rules.
452 The Arbitrator may rule to reject the order,
453 for jurisdiction or other reasons.
454 By way of example, if all Parties are
455 Members,
456 then jurisdiction more normally falls within the forum.
457 If the Arbitrator rules to reject,
458 he should do so only after consulting with CAcert Inc. counsel.
459 The Arbitrator's jurisidiction is ordinarily that of
460 dealing with the order, and
461 not that which the external court has claimed to.
462 </p>
463
464
465 <h3 id="g0.3.6">Process</h3>
466
467 <p>
468 The Arbitrator follows the procedure:
469 </p>
470
471
472 <ol>
473 <li>
474 Establish the facts.
475 The Arbitrator collects the evidence from the parties.
476 The Arbitrator may order CAcert Inc. or
477 Members
478 under jurisdiction to provide support or information.
479 The Arbitrator may use email, phone or face-to-face
480 meetings as proceedings.
481 </li>
482 <li>
483 Apply the Rules of Dispute Resolution,
484 the policies of CAcert and the governing law.
485 The Arbitrator may request that the parties
486 submit their views.
487 The Arbitrator also works to the mission of CAcert,
488 the benefit of all
489 Members
490 , and the community as a whole.
491 The Arbitrator may
492 seek
493 any assistance.
494 </li>
495 <li>
496 Makes a considered Ruling.
497 </li>
498 </ol>
499
500 <h2 id="g0.4">The Ruling</h2>
501
502 <h3 id="g0.4.1">The Contents </h3>
503
504 <p>
505 The Arbitrator records:
506 </p>
507
508 <ol>
509 <li>
510 The Identification of the Parties,
511 </li>
512 <li>
513 The Facts,
514 </li>
515 <li>
516 The logic of the rules and law,
517 </li>
518 <li>
519 The directions and actions to be taken by each party
520 (the ruling).
521 </li>
522 <li>
523 The date and place that the ruling is rendered.
524 </li>
525 </ol>
526
527
528 <h3 id="g0.4.2">Process </h3>
529 <p>
530 Once the Ruling is delivered, the case is closed.
531 The Case Manager is responsible for recording the
532 Ruling, publishing it, and advising Members.
533 </p>
534
535 <p>
536 Proceedings are ordinarily private.
537 The Ruling is ordinarily published,
538 within the bounds of the Privacy Policy.
539 The Ruling is written in English.
540 </p>
541
542 <p>
543 Only under exceptional circumstances can the
544 Arbitrator declare the Ruling private <i>under seal</i>.
545 Such a declaration must be reviewed in its entirety
546 by the Board,
547 and the Board must confirm or deny that declaration.
548 If it confirms, the existence of any Rulings under seal
549 must be published to the
550 Members
551 in a timely manner
552 (within days).
553 </p>
554
555 <h3 id="g0.4.3">Binding and Final </h3>
556
557 <p>
558 The Ruling is
559 ordinarily final and binding
560 on CAcert Inc.and all
561 Members
562 .
563 Ordinarily, all
564 Members
565 agree to be bound by this dispute
566 resolution policy.
567 Members
568 must declare in the Preliminaries
569 any default in agreement or binding.
570 </p>
571
572 <p>
573 If a person who is not a
574 Member
575 is a party to the dispute,
576 then the Ruling is not binding and final on that person,
577 but the Ruling must be presented in filing any dispute
578 in another forum such as the person's local courts.
579 </p>
580
581 <h3 id="g0.4.4">Review for Appeal</h3>
582
583 <p>
584 In the eventof clear injustices, egregious behaviour or
585 unconscionable Rulings,
586 a review may be requested by filing a dispute.
587 The new Arbitrator reviews the new dispute,
588 re-examines and reviews the entire case, then rules on
589 whether the case may be re-opened or not.
590 </p>
591
592 <p>
593 If the Review Arbitrator rules the case be re-opened,
594 then the Review Arbitrator refers the case to an Appeal Panel of 3.
595 The Appeal Panel is led by a Senior Arbitrator,
596 and is formed according to procedures established
597 by the DRO from time to time.
598 The Appeal Panel hears the case and delivers a final and binding Ruling.
599 </p>
600
601 <h3 id="g0.4.5">Liability </h3>
602
603 <p>
604 All liability of the Arbitrator for any act in
605 connection with deciding a dispute is excluded
606 by all parties, provided such act does not constitute
607 an intentional breach of duty.
608 All liability of the Arbitrators, CAcert Inc., its officers and its
609 employees (including Case Manager)
610 for any other act or omission in connection with
611 arbitration proceedings is excluded, provided such acts do not
612 constitute an intentional or grossly negligent breach of duty.
613 </p>
614
615 <p>
616 The above provisions may only be overridden by
617 appeal process
618 (by means of a new dispute causing referral to the Board).
619
620 </p>
621
622 <h3 id="g0.4.6">Remedies </h3>
623
624 <p>
625 The Arbitrator generally instructs using internal remedies,
626 that is ones that are within the general domain of
627 the Community,
628 but there are some external remedies at his disposal.
629 He may rule and instruct any of the parties on these issues.
630 </p>
631
632 <ul>
633 <li>
634 "community service" typically including
635
636 <ul>
637 <li>
638 attend and assure people at trade shows / open source gatherings,
639 </li>
640 <li>
641 writing documentation
642 </li>
643 <li>
644 serve in a role - support, dispute arbitration
645 </li>
646 </ul>
647 or others as decided.
648
649 </li>
650 <li>
651 Fined by loss of assurance points, which may result
652 in losing Assurer or Assured status.
653
654 </li>
655 <li>
656 Retraining in role.
657
658 </li>
659 <li>
660 Revoking of any certificates.
661
662 </li>
663 <li>
664 Monetary fine up to the liability cap established for
665 each party as described in the
666 CAcert Community Agreement.
667
668 </li>
669 <li>
670 Exclusion from community.
671
672 </li>
673 <li>
674 Reporting to applicable authorities.
675
676 </li>
677 <li>
678 Changes to policies and procedures.
679
680 </li>
681 </ul>
682
683 <p>
684 The Arbitrator is not limited within the general domain
685 of CAcert, and may instruct novel remedies as seen fit.
686 Novel remedies outside the domain may be routinely
687 confirmed by the Board by way of appeal process,
688 in order to establish precedent.
689
690 </p>
691
692 <h2 id="g0.5">Appendix</h2>
693
694
695 <h3 id="g0.5.1">The Advantages of this Forum </h3>
696 <p>
697 The advantage of this process for
698 Members
699 is:
700 </p>
701
702 <ul>
703 <li>
704 CAcert and Members operate across many jurisdictions.
705 Arbitration allows us to select a single set of
706 rules across all jurisdictions.
707 </li>
708 <li>
709 Arbitration allows CAcert to appropriately separate
710 out the routine support actions from difficult dispute
711 actions. Support personnel have no authority to
712 act, the appropriately selected Arbitrator has all
713 authority to act.
714 Good governance is thus maintained.
715 </li>
716 <li>
717 This forum allows CAcert Members to look after themselves
718 in a community, without exposing each other to potentially
719 disastrous results in strange courts from foreign lands.
720 </li>
721 <li>
722 By volunteering to resolve things "in-house" the costs
723 are reduced.
724 </li>
725 <li>
726 Even simple support issues such as password changing
727 can be improved by treating as a dispute. A clear
728 chain of request, analysis, ruling and action can be established.
729 </li>
730 <li>
731 CAcert Assurers can develop the understanding and the rules
732 for sorting out own problems far better than courts or
733 other external agencies.
734 </li>
735 </ul>
736
737 <h3 id="g0.5.2">The Disadvantages of this Forum </h3>
738
739 <p>
740 Some disadvantages exist.
741 </p>
742
743 <ul>
744 <li>
745 Membersmay have their rights trampled over.
746 In such a case, the community should strive to
747 re-open the case
748 and refer it to the board.
749
750
751 </li>
752 <li>
753 Members may feel overwhelmed by the formality
754 of the process.
755 It is kept formal so as to establish good and proper
756 authority to act; otherwise, support and other
757 people in power may act without thought and with
758 damaging consequences.
759 </li>
760 <li>
761 A country may not have an Arbitration Act.
762 In that case, the parties should enter into
763 spirit of the forum.
764 If they choose to break that spirit,
765 they should also depart the community.
766 </li>
767 </ul>
768
769 <h3 id="g0.5.3">Process and Flow </h3>
770
771 <p>
772 To the extent reasonable, the Arbitrator conducts
773 the arbitration as with any legal proceedings.
774 This means that the process and style should follow
775 legal tradition.
776 </p>
777
778 <p>
779 However, the Arbitrator is unlikely to be trained in
780 law. Hence, common sense must be applied, and the
781 Arbitrator has wide latitude to rule on any particular
782 motion, pleading, submission. The Arbitrator's ruling
783 is final within the arbitration.
784 </p>
785
786 <p>
787 Note also that many elements of legal proceedings are
788 deliberately left out of the rules.
789 </p>
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