bug 1131: More policies updated by Policy Officer
[cacert-devel.git] / www / policy / DisputeResolutionPolicy.html
1 <!DOCTYPE html>
2 <html>
3 <head>
4 <meta http-equiv="Content-Type" content="text/html; charset=UTF-8" lang="en">
5 <title>Dispute Resulution Policy</title>
6 <style type="text/css">
7 <!--
8 .comment {
9 color : steelblue;
10 }
11 -->
12 </style>
13 </head>
14 <body>
15
16
17
18 <div class="comment">
19 <table width="100%">
20
21 <tbody>
22 <tr>
23 <td rowspan="2">
24 Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a>
25 <br>
26 Status: POLICY <a href="https://wiki.cacert.org/PolicyDecisions#p20140731">p20140731</a>
27 <br>
28 Created: m20070919.3
29 <br>
30 Changed: p20110108, p20121213, p20130116
31
32 <br>
33 Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
34 </a>
35 <br>
36 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>
37 </td>
38 <td align="right" valign="top">
39 <a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
40 <a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
41 <img src="images/cacert-policy.png" alt="DRP Status - POLICY" style="border-style: none;" height="31" width="88">
42 </a>
43 </td>
44 </tr>
45 </tbody>
46 </table>
47 </div>
48
49
50 <h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>
51
52 <h2 id="g0.1">0. Introduction</h2>
53
54 <p>
55 This is the Dispute Resolution Policy
56 for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
57 Disputes arising out of
58 operations by CAcert
59 Inc
60 and interactions between
61 Members
62 may be addressed through this policy.
63 This document also presents the rules for
64 resolution of disputes.
65 </p>
66
67 <h3 id="g0.1.1">0.1. Nature of Disputes </h3>
68
69 <p>
70 Disputes include:
71 </p>
72
73 <ul>
74 <li>
75 Requests for non-routine support actions.
76 CAcert support team has no authority to
77 act outside the normal support facilities made
78 available to
79 Members;
80 </li>
81 <li>
82 Classical disputes where a Member or another
83 assert claims and demand remedies;
84 </li>
85 <li>
86 Requests by external organisations, including
87 legal processes from foreign courts;
88 </li>
89 <li>
90 Events initiated for training purposes.
91 </li>
92 </ul>
93
94 <h2 id="g0.2">1. Filing</h2>
95
96 <h3 id="g0.2.1">1.1. Filing Party</h3>
97 <p>
98 Anyone may file a dispute.
99 In filing, they become <i>Claimants</i>.
100 </p>
101
102 <h3 id="g0.2.2">1.2. Channel for Filing</h3>
103
104 <p>
105 Disputes are filed by being sent to the normal
106 support channel of CAcert,
107 and a fee may be payable.
108 </p>
109
110 <p>
111 Such fees as are imposed on filing will be specified
112 on the dispute resolution page of the website.
113 </p>
114
115 <h3 id="g0.2.3">1.3. Case Manager</h3>
116 <p>
117 The Case Manager (CM) takes control of the filing.
118 </p>
119
120 <ol>
121 <li>
122 CM makes an initial determination as
123 to whether this filing is a dispute
124 for resolution, or it is a request
125 for routine support.
126 </li>
127 <li>
128 CM logs the case and establishes such
129 documentation and communications support as is customary.
130 </li>
131 <li>
132 If any party acts immediately on the filing
133 (such as an urgent security action),
134 the CM names these parties to the case.
135 </li>
136 <li>
137 CM selects the Arbitrator.
138 </li>
139 </ol>
140
141 <p>
142 The personnel within the CAcert support team
143 are Case Managers, by default, or as directed
144 by the Dispute Resolution Officer (DRO).
145 </p>
146
147 <h3 id="g0.2.4">1.4. Contents</h3>
148 <p>
149 The filing must specify:
150 </p>
151
152 <ul>
153 <li>
154 The filing party(s), being the <i>Claimant(s)</i>.
155 </li>
156 <li>
157 The party(s) to whom the complaint is addressed to,
158 being the <i>Respondent(s)</i>.
159 This will be CAcert in the
160 case of requests for support actions.
161 It may be a Member (possibly unidentified) in the
162 case where one Member has given rise to a complaint against another.
163 </li>
164 <li>
165 The <i>Complaint</i>.
166 For example, a trademark has been infringed,
167 privacy has been breached,
168 or a Member has defrauded using a certificate.
169 </li>
170 <li>
171 The action(s) requested by the filing party
172 (technically, called the <i>relief</i>).
173 For example, to delete an account,
174 to revoke a certificate, or to stop a
175 trademark infringement.
176 </li>
177 </ul>
178
179 <p>
180 If the filing is inadequate for lack of information
181 or for format, the Case Manager
182 may refile with the additional information,
183 attaching the original messages.
184 </p>
185
186 <h3 id="g0.2.5">1.5. The Arbitrator</h3>
187
188 <p>
189 The Case Manager selects the Arbitrator according
190 to the mechanism managed by the
191 DRO
192 and approved from time to time.
193 This mechanism is to maintain a list of Arbitrators available for
194 dispute resolution.
195 Each selected Arbitrator has the right to decline the dispute,
196 and should decline a dispute with which there exists a conflict
197 of interest.
198 The reason for declining should be stated.
199 If no Arbitrator accepts the dispute, the case is
200 closed with status "declined."
201 </p>
202
203 <p>
204 Arbitrators are experienced Assurers.
205 They should be independent and impartial, including
206 of CAcert Inc. itself where it becomes a party.
207 </p>
208
209 <h2 id="g0.3">2. The Arbitration</h2>
210
211
212 <h3 id="g0.3.1">2.1. Authority</h3>
213
214 <p>
215 The Board of CAcert Inc. and the
216 Members of the Community
217 vest in Arbitrators
218 full authority to hear disputes and deliver rulings
219 which are binding on CAcert Inc. and the
220 Members.
221 </p>
222
223
224 <h3 id="g0.3.2">2.2. Preliminaries</h3>
225
226 <p>
227 The Arbitrator conducts some preliminaries:
228 </p>
229
230 <ul>
231 <li>
232 The Arbitrator reviews the available documentation
233 and affirms the rules of dispute resolution.
234 Jurisdiction is established, see below.
235 </li>
236 <li>
237 The Arbitrator affirms the governing law (NSW, Australia).
238 The Arbitrator may select local law and local
239 procedures where Claimants and all Respondents
240 agree, are under such jurisdiction, and it is deemed
241 more appropriate.
242 However, this is strictly limited to those parties,
243 and especially, CAcert Inc. and other parties
244 remain under the governing law.
245 </li>
246 <li>
247 The Arbitrator reviews the Respondents and Claimants
248 with a view to dismissal or joining of additional parties.
249 E.g., support personnel may be joined if emergency action was
250 taken.
251 </li>
252 <li>
253 Any parties that are not
254 Members
255 and are not bound by the
256 CCA
257 are given the opportunity to enter into
258 CAcert and be bound by the
259 CCA
260 and these rules of arbitration.
261 If
262 these Non-Related Persons (NRPs)
263 remain outside,
264 their rights and remedies under CAcert's policies
265 and forum are strictly limited to
266 those
267 specified in the
268 Root Distribution License.
269 NRPs
270 may proceed with Arbitration subject to preliminary orders
271 of the Arbitrator.
272 </li>
273 <li>
274 Participating
275 Members
276 may not resign
277 from the Community
278 until the completion of the case.
279 </li>
280 <li>
281 The Arbitrator confirms that all parties accept
282 the forum of dispute resolution.
283 This is especially important where a
284 Member
285 might be
286 in a country with no Arbitration Act in law, or
287 where there is reason to believe that a party might
288 go to an external court.
289 </li>
290 <li>
291 The Arbitrator confirms that parties are representing
292 themselves. Parties are entitled to be legally
293 represented, but are not encouraged to do so,
294 bearing in mind the volunteer nature of the
295 organisation and the size of the dispute.
296 If they do so,
297 they must declare such, including any changes.
298 </li>
299 <li>
300 The Arbitrator may appoint experienced Assurers
301 to assist and represent parties, especially for NRPs.
302 The Case Manager must not provide such assistance.
303 </li>
304 <li>
305 The Arbitrator is bound to maintain the balance
306 of legal fairness.
307 </li>
308 <li>
309 The Arbitrator may make any preliminary orders,
310 including protection orders and orders referring
311 to emergency actions already taken.
312 </li>
313 <li>
314 The Arbitrator may request any written pleadings,
315 counterclaims, and/or statements of defence.
316 </li>
317 </ul>
318
319
320 <h3 id="g0.3.3">2.3. Jurisdiction </h3>
321
322 <p>
323 Jurisdiction - the right or power to hear and rule on
324 disputes - is initially established by clauses in the
325 CAcert Community Agreement.
326 The agreement must establish:
327 </p>
328
329 <ul>
330 <li>
331 That all Parties agree to binding Arbitration
332 in CAcert's forum of dispute resolution;
333 </li>
334 <li>
335 for all disputes relating to activities within
336 CAcert, issued certificates, roles and actions, etc;
337 </li>
338 <li>
339 as defined by these rules, including the selection
340 of a single Arbitrator;
341 </li>
342 <li>
343 under the Law of NSW, Australia; and
344 </li>
345 <li>
346 the Parties keep email accounts in good working order.
347 </li>
348 </ul>
349
350 <p>
351 An external court may have ("assert") jurisdiction to decide on
352 issues such as trademark, privacy, contract and fraud,
353 and may do so with legal remedies.
354 These are areas where jurisdiction may need
355 to be considered carefully:
356 </p>
357
358 <ul>
359 <li>
360 Where NRPs, being not Members of CAcert and not
361 bound by agreement, are parties to the dispute.
362 E.g., intellectual property disputes may involve
363 NRPs and their trademarks;
364 </li>
365 <li>
366 criminal actions or actions likely to result in criminal
367 proceedings,
368 e.g., fraud;
369 </li>
370 <li>
371 Contracts between
372 Members
373 that were formed without
374 a clause to seek arbitration in the forum;
375 </li>
376 <li>
377 Areas where laws fall outside the Arbitration Act,
378 such as privacy;
379 </li>
380 <li>
381 Legal process (subpoenas, etc) delivered by
382 an external court of "competent jurisdiction."
383 </li>
384 </ul>
385
386 <p>
387 The Arbitrator must consider jurisdiction and rule on a
388 case by case basis whether jurisdiction is asserted,
389 either wholly or partially, or declines to hear the case.
390 In the event of asserting
391 jurisdiction, and a NRP later decides to pursue rights in
392 another forum, the Arbitrator should seek the agreement
393 of the NRP to file the ruling as part of the new case.
394 </p>
395
396 <h3 id="g0.3.4">2.4. Basis in Law </h3>
397
398 <p>
399 Each country generally has an Arbitration Act
400 that elevates Arbitration as a strong dispute
401 resolution forum.
402 The Act generally defers to Arbitration
403 if the parties have so agreed.
404 That is, as
405 Members
406 ,
407 you agree to resolve
408 all disputes before CAcert's forum.
409 This is sometimes called <i>private law</i>
410 or <i>alternative dispute resolution</i>.
411 </p>
412
413 <p>
414 As a matter of public policy, courts will generally
415 refer any case back to Arbitration.
416 Members
417 should understand that they will have
418 strictly limited rights to ask the courts to
419 seek to have a case heard or to override a Ruling.
420 </p>
421
422
423 <h3 id="g0.3.5">2.5. External Courts </h3>
424
425 <p>
426 When an external court claims and asserts its jurisdiction,
427 and issues a court order, subpoena or other service to CAcert,
428 the CM files the order as a dispute, with the external court
429 as <i>Claimant</i>.
430 The CM and other support staff are granted no authority to
431 act on the basis of any court order, and ordinarily
432 must await the order of the Arbitrator
433 (which might simply be a repeat of the external court order).
434 </p>
435
436 <p>
437 The Arbitrator establishes the bona fides of the
438 court, and rules.
439 The Arbitrator may rule to reject the order,
440 for jurisdiction or other reasons.
441 By way of example, if all Parties are
442 Members,
443 then jurisdiction more normally falls within the forum.
444 If the Arbitrator rules to reject,
445 he should do so only after consulting with CAcert Inc. counsel.
446 The Arbitrator's jurisidiction is ordinarily that of
447 dealing with the order, and
448 not that which the external court has claimed to.
449 </p>
450
451
452 <h3 id="g0.3.6">2.6. Process</h3>
453
454 <p>
455 The Arbitrator follows the procedure:
456 </p>
457
458
459 <ol>
460 <li>
461 Establish the facts.
462 The Arbitrator collects the evidence from the parties.
463 The Arbitrator may order CAcert Inc. or
464 Members
465 under jurisdiction to provide support or information.
466 The Arbitrator may use email, phone or face-to-face
467 meetings as proceedings.
468 </li>
469 <li>
470 Apply the Rules of Dispute Resolution,
471 the policies of CAcert and the governing law.
472 The Arbitrator may request that the parties
473 submit their views.
474 The Arbitrator also works to the mission of CAcert,
475 the benefit of all
476 Members
477 , and the community as a whole.
478 The Arbitrator may
479 seek
480 any assistance.
481 </li>
482 <li>
483 Makes a considered Ruling.
484 </li>
485 </ol>
486
487 <h2 id="g0.4">3. The Ruling</h2>
488
489 <h3 id="g0.4.1">3.1. The Contents </h3>
490
491 <p>
492 The Arbitrator records:
493 </p>
494
495 <ol>
496 <li>
497 The Identification of the Parties,
498 </li>
499 <li>
500 The Facts,
501 </li>
502 <li>
503 The logic of the rules and law,
504 </li>
505 <li>
506 The directions and actions to be taken by each party
507 (the ruling).
508 </li>
509 <li>
510 The date and place that the ruling is rendered.
511 </li>
512 </ol>
513
514
515 <h3 id="g0.4.2">3.2. Process </h3>
516 <p>
517 Once the Ruling is delivered, the case is closed.
518 The Case Manager is responsible for recording the
519 Ruling, publishing it, and advising Members.
520 </p>
521
522 <p>
523 Proceedings are ordinarily private.
524 The Ruling is ordinarily published,
525 within the bounds of the Privacy Policy.
526 The Ruling is written in English.
527 </p>
528
529 <p>
530 Only under exceptional circumstances can the
531 Arbitrator declare the Ruling private <i>under seal</i>.
532 Such a declaration must be reviewed in its entirety
533 by the Board,
534 and the Board must confirm or deny that declaration.
535 If it confirms, the existence of any Rulings under seal
536 must be published to the
537 Members
538 in a timely manner
539 (within days).
540 </p>
541
542 <h3 id="g0.4.3">3.3. Binding and Final </h3>
543
544 <p>
545 The Ruling is
546 ordinarily final and binding
547 on CAcert Inc.and all
548 Members
549 .
550 Ordinarily, all
551 Members
552 agree to be bound by this dispute
553 resolution policy.
554 Members
555 must declare in the Preliminaries
556 any default in agreement or binding.
557 </p>
558
559 <p>
560 If a person who is not a
561 Member
562 is a party to the dispute,
563 then the Ruling is not binding and final on that person,
564 but the Ruling must be presented in filing any dispute
565 in another forum such as the person's local courts.
566 </p>
567
568 <h3 id="g0.4.4">3.4. Review for Appeal</h3>
569
570 <p>
571 In the eventof clear injustices, egregious behaviour or
572 unconscionable Rulings,
573 a review may be requested by filing a dispute.
574 The new Arbitrator reviews the new dispute,
575 re-examines and reviews the entire case, then rules on
576 whether the case may be re-opened or not.
577 </p>
578
579 <p>
580 If the Review Arbitrator rules the case be re-opened,
581 then the Review Arbitrator refers the case to an Appeal Panel of 3.
582 The Appeal Panel is led by a Senior Arbitrator,
583 and is formed according to procedures established
584 by the DRO from time to time.
585 The Appeal Panel hears the case and delivers a final and binding Ruling.
586 </p>
587
588 <h3 id="g0.4.5">3.5. Liability </h3>
589
590 <p>
591 All liability of the Arbitrator for any act in
592 connection with deciding a dispute is excluded
593 by all parties, provided such act does not constitute
594 an intentional breach of duty.
595 All liability of the Arbitrators, CAcert Inc., its officers and its
596 employees (including Case Manager)
597 for any other act or omission in connection with
598 arbitration proceedings is excluded, provided such acts do not
599 constitute an intentional or grossly negligent breach of duty.
600 </p>
601
602 <p>
603 The above provisions may only be overridden by
604 appeal process
605 (by means of a new dispute causing referral to the Board).
606
607 </p>
608
609 <h3 id="g0.4.6">3.6. Remedies </h3>
610
611 <p>
612 The Arbitrator generally instructs using internal remedies,
613 that is ones that are within the general domain of
614 the Community,
615 but there are some external remedies at his disposal.
616 He may rule and instruct any of the parties on these issues.
617 </p>
618
619 <ul>
620 <li>
621 "community service" typically including
622
623 <ul>
624 <li>
625 attend and assure people at trade shows / open source gatherings,
626 </li>
627 <li>
628 writing documentation
629 </li>
630 <li>
631 serve in a role - support, dispute arbitration
632 </li>
633 </ul>
634 or others as decided.
635
636 </li>
637 <li>
638 Fined by loss of assurance points, which may result
639 in losing Assurer or Assured status.
640
641 </li>
642 <li>
643 Retraining in role.
644
645 </li>
646 <li>
647 Revoking of any certificates.
648
649 </li>
650 <li>
651 Monetary fine up to the liability cap established for
652 each party as described in the
653 CAcert Community Agreement.
654
655 </li>
656 <li>
657 Exclusion from community.
658
659 </li>
660 <li>
661 Reporting to applicable authorities.
662
663 </li>
664 <li>
665 Changes to policies and procedures.
666
667 </li>
668 </ul>
669
670 <p>
671 The Arbitrator is not limited within the general domain
672 of CAcert, and may instruct novel remedies as seen fit.
673 Novel remedies outside the domain may be routinely
674 confirmed by the Board by way of appeal process,
675 in order to establish precedent.
676
677 </p>
678
679 <h2 id="g0.5">4. Appendix</h2>
680
681
682 <h3 id="g0.5.1">4.1. The Advantages of this Forum </h3>
683 <p>
684 The advantage of this process for
685 Members
686 is:
687 </p>
688
689 <ul>
690 <li>
691 CAcert and Members operate across many jurisdictions.
692 Arbitration allows us to select a single set of
693 rules across all jurisdictions.
694 </li>
695 <li>
696 Arbitration allows CAcert to appropriately separate
697 out the routine support actions from difficult dispute
698 actions. Support personnel have no authority to
699 act, the appropriately selected Arbitrator has all
700 authority to act.
701 Good governance is thus maintained.
702 </li>
703 <li>
704 This forum allows CAcert Members to look after themselves
705 in a community, without exposing each other to potentially
706 disastrous results in strange courts from foreign lands.
707 </li>
708 <li>
709 By volunteering to resolve things "in-house" the costs
710 are reduced.
711 </li>
712 <li>
713 Even simple support issues such as password changing
714 can be improved by treating as a dispute. A clear
715 chain of request, analysis, ruling and action can be established.
716 </li>
717 <li>
718 CAcert Assurers can develop the understanding and the rules
719 for sorting out own problems far better than courts or
720 other external agencies.
721 </li>
722 </ul>
723
724 <h3 id="g0.5.2">4.2. The Disadvantages of this Forum </h3>
725
726 <p>
727 Some disadvantages exist.
728 </p>
729
730 <ul>
731 <li>
732 Membersmay have their rights trampled over.
733 In such a case, the community should strive to
734 re-open the case
735 and refer it to the board.
736
737
738 </li>
739 <li>
740 Members may feel overwhelmed by the formality
741 of the process.
742 It is kept formal so as to establish good and proper
743 authority to act; otherwise, support and other
744 people in power may act without thought and with
745 damaging consequences.
746 </li>
747 <li>
748 A country may not have an Arbitration Act.
749 In that case, the parties should enter into
750 spirit of the forum.
751 If they choose to break that spirit,
752 they should also depart the community.
753 </li>
754 </ul>
755
756 <h3 id="g0.5.3">4.3. Process and Flow </h3>
757
758 <p>
759 To the extent reasonable, the Arbitrator conducts
760 the arbitration as with any legal proceedings.
761 This means that the process and style should follow
762 legal tradition.
763 </p>
764
765 <p>
766 However, the Arbitrator is unlikely to be trained in
767 law. Hence, common sense must be applied, and the
768 Arbitrator has wide latitude to rule on any particular
769 motion, pleading, submission. The Arbitrator's ruling
770 is final within the arbitration.
771 </p>
772
773 <p>
774 Note also that many elements of legal proceedings are
775 deliberately left out of the rules.
776 </p>
777
778
779 </body>
780 </html>