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61 <td>
62 Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
63 Status: POLICY <a style="color: steelblue" href="https://wiki.cacert.org/TopMinutes-20070917">m20070919.3</a><br />
64 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <span class="draftadd">DRAFT <a href="https://wiki.cacert.org/PolicyDecisions#p20110108">p20110108</a>, <a href="https://wiki.cacert.org/PolicyDecisions#p20121213">p20121213</a>, <a href="https://wiki.cacert.org/PolicyDecisions#p20130116">p20130116</a></span> <br />
65 Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
66 </a><br />
67 Licence: <a style="color: steelblue" href="https://wiki.cacert.org/Policy#Licence" title="this document is Copyright &copy; 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><br /></td>
68 <td class="r vTop">
69 <a href="https://www.cacert.org/policy/PolicyOnPolicy.html"><img src="images/cacert-policy.png" alt="DRP Status - POLICY" height="31" width="88" style="border-style: none;" /></a><br />
70 <a href="https://www.cacert.org/policy/PolicyOnPolicy.html"><img src="images/cacert-draft.png" alt="DRP Status - DRAFT" height="31" width="88" style="border-style: none;" /></a>
71
72 </td>
73 </tr>
74 </table>
75 </div>
76
77
78 <h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>
79
80 <h2 id="s0"> 0. Introduction</h2>
81
82 <p>
83 This is the Dispute Resolution Policy for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
84 Disputes arising out of
85 operations by CAcert Inc
86 and interactions between Members may be addressed through this policy.
87 This document also presents the rules for
88 resolution of disputes.
89 </p>
90
91 <h3 id="s0.1"> 0.1 Nature of Disputes </h3>
92
93 <p>
94 Disputes include:
95 </p>
96
97 <ul><li>
98 Requests for non-routine support actions.
99 CAcert support team has no authority to
100 act outside the normal support facilities made
101 available to Members;
102 </li><li>
103 Classical disputes where a Member or another
104 assert claims and demand remedies;
105 </li><li>
106 Requests by external organisations, including
107 legal processes from foreign courts;
108 </li><li>
109 Events initiated for training purposes.
110 </li></ul>
111
112 <h2 id="s1"> 1. Filing</h2>
113
114 <h3 id="s1.1"> 1.1 Filing Party</h3>
115 <p>
116 Anyone may file a dispute.
117 In filing, they become <em>Claimants</em>.
118 </p>
119
120 <h3 id="s1.2"> 1.2 Channel for Filing</h3>
121
122 <p>
123 Disputes are filed by being sent to the normal
124 support channel of CAcert,
125 and a fee may be payable.
126 </p>
127
128 <p>
129 Such fees as are imposed on filing will be specified
130 on the dispute resolution page of the website.
131 </p>
132
133 <h3 id="s1.3"> 1.3 Case Manager</h3>
134 <p>
135 The Case Manager (CM) takes control of the filing.
136 </p>
137
138 <ol><li>
139 CM makes an initial determination as
140 to whether this filing is a dispute
141 for resolution, or it is a request
142 for routine support.
143 </li><li>
144 CM logs the case and establishes such
145 documentation and communications support as is customary.
146 </li><li>
147 If any party acts immediately on the filing
148 (such as an urgent security action),
149 the CM names these parties to the case.
150 </li><li>
151 CM selects the Arbitrator.
152 </li></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="s1.4"> 1.4 Contents</h3>
161 <p>
162 The filing must specify:
163 </p>
164
165 <ul><li>
166 The filing party(s), being the <em>Claimant(s)</em>.
167 </li><li>
168 The party(s) to whom the complaint is addressed to,
169 being the <em>Respondent(s)</em>.
170 This will be CAcert in the
171 case of requests for support actions.
172 It may be a Member (possibly unidentified) in the
173 case where one Member has given rise to a complaint against another.
174 </li><li>
175 The <em>Complaint</em>.
176 For example, a trademark has been infringed,
177 privacy has been breached,
178 or a Member has defrauded using a certificate.
179 </li><li>
180 The action(s) requested by the filing party
181 (technically, called the <em>relief</em>).
182 For example, to delete an account,
183 to revoke a certificate, or to stop a
184 trademark infringement.
185 </li></ul>
186
187 <p>
188 If the filing is inadequate for lack of information
189 or for format, the Case Manager
190 may refile with the additional information,
191 attaching the original messages.
192 </p>
193
194 <h3 id="s1.5"> 1.5 The Arbitrator</h3>
195
196 <p>
197 The Case Manager selects the Arbitrator according
198 to the mechanism managed by the DRO <!-- Dispute Resolution Officer --> and approved from time to time.
199 This mechanism is to maintain a list of Arbitrators available for
200 dispute resolution.
201 Each selected Arbitrator has the right to decline the dispute,
202 and should decline a dispute with which there exists a conflict
203 of interest.
204 The reason for declining should be stated.
205 If no Arbitrator accepts the dispute, the case is
206 closed with status "declined."
207 </p>
208
209 <p>
210 Arbitrators are experienced Assurers of CAcert.
211 They should be independent and impartial, including
212 of CAcert Inc. itself where it becomes a party.
213 </p>
214
215 <h2 id="s2"> 2. The Arbitration</h2>
216
217
218 <h3 id="s2.1"> 2.1 Authority</h3>
219
220 <p>
221 The Board of CAcert Inc. and the
222 Members of the Community
223 vest in Arbitrators
224 full authority to hear disputes and deliver rulings
225 which are binding on CAcert Inc. and the
226 Members.
227 </p>
228
229
230 <h3 id="s2.2"> 2.2 Preliminaries</h3>
231
232 <p>
233 The Arbitrator conducts some preliminaries:
234 </p>
235
236 <ul><li>
237 The Arbitrator reviews the available documentation
238 and affirms the rules of dispute resolution.
239 Jurisdiction is established, see below.
240 </li><li>
241 The Arbitrator affirms the governing law (NSW, Australia).
242 The Arbitrator may select local law and local
243 procedures where Claimants and all Respondents
244 agree, are under such jurisdiction, and it is deemed
245 more appropriate.
246 However, this is strictly limited to those parties,
247 and especially, CAcert Inc. and other parties
248 remain under the governing law.
249 </li><li>
250 The Arbitrator reviews the Respondents and Claimants
251 with a view to dismissal or joining of additional parties.
252 E.g., support personnel may be joined if emergency action was
253 taken.
254 </li><li>
255 Any parties that are not Members
256 and are not bound by the
257 CCA are given the opportunity to enter into
258 CAcert and be bound by the
259 CCA and these rules of arbitration.
260 If these Non-Related Persons (NRPs)
261 remain outside,
262 their rights and remedies under CAcert's policies
263 and forum are strictly limited to
264 <span class="strike">that</span>those
265 specified in the Root Distribution License. NRPs may proceed with Arbitration subject to preliminary orders
266 of the Arbitrator.
267 </li><li>
268 Participating Members
269 may not resign from the Community
270 until the completion of the case.
271 </li><li>
272 The Arbitrator confirms that all parties accept
273 the forum of dispute resolution.
274 This is especially important where a Member might be
275 in a country with no Arbitration Act in law, or
276 where there is reason to believe that a party might
277 go to an external court.
278 </li><li>
279 The Arbitrator confirms that parties are representing
280 themselves. Parties are entitled to be legally
281 represented, but are not encouraged to do so,
282 bearing in mind the volunteer nature of the
283 organisation and the size of the dispute.
284 If they do so, they must declare such, including any changes.
285 </li><li>
286 The Arbitrator may appoint experienced Assurers
287 to assist and represent parties, especially for NRPs.
288 The Case Manager must not provide such assistance.
289 </li><li>
290 The Arbitrator is bound to maintain the balance
291 of legal fairness.
292 </li><li>
293 The Arbitrator may make any preliminary orders,
294 including protection orders and orders referring
295 to emergency actions already taken.
296 </li><li>
297 The Arbitrator may request any written pleadings,
298 counterclaims, and/or statements of defence.
299 </li></ul>
300
301
302 <h3 id="s2.3"> 2.3 Jurisdiction </h3>
303
304 <p>
305 Jurisdiction - the right or power to hear and rule on
306 disputes - is initially established by clauses in the
307 CAcert Community Agreement. The agreement must establish:
308 </p>
309
310 <ul><li>
311 That all Parties agree to binding Arbitration
312 in CAcert's forum of dispute resolution;
313 </li><li>
314 for all disputes relating to activities within
315 CAcert, issued certificates, roles and actions, etc;
316 </li><li>
317 as defined by these rules, including the selection
318 of a single Arbitrator;
319 </li><li>
320 under the Law of NSW, Australia; and
321 </li><li>
322 the Parties keep email accounts in good working order.
323 </li></ul>
324
325 <p>
326 An external court may have ("assert") jurisdiction to decide on
327 issues such as trademark, privacy, contract and fraud,
328 and may do so with legal remedies.
329 These are areas where jurisdiction may need
330 to be considered carefully:
331 </p>
332
333 <ul><li>
334 Where NRPs, being not Members of CAcert and not
335 bound by agreement, are parties to the dispute.
336 E.g., intellectual property disputes may involve
337 NRPs and their trademarks;
338 </li><li>
339 criminal actions or actions likely to result in criminal
340 proceedings,
341 e.g., fraud;
342 </li><li>
343 Contracts between Members that were formed without
344 a clause to seek arbitration in the forum;
345 </li><li>
346 Areas where laws fall outside the Arbitration Act,
347 such as privacy;
348 </li><li>
349 Legal process (subpoenas, etc) delivered by
350 an external court of "competent jurisdiction."
351 </li></ul>
352
353 <p>
354 The Arbitrator must consider jurisdiction and rule on a
355 case by case basis whether jurisdiction is asserted,
356 either wholly or partially, or declines to hear the case.
357 In the event of asserting
358 jurisdiction, and a NRP later decides to pursue rights in
359 another forum, the Arbitrator should seek the agreement
360 of the NRP to file the ruling as part of the new case.
361 </p>
362
363 <h3 id="s2.4"> 2.4 Basis in Law </h3>
364
365 <p>
366 Each country generally has an Arbitration Act
367 that elevates Arbitration as a strong dispute
368 resolution forum.
369 The Act generally defers to Arbitration
370 if the parties have so agreed.
371 That is, as Members, you agree to resolve
372 all disputes before CAcert's forum.
373 This is sometimes called <em>private law</em>
374 or <em>alternative dispute resolution</em>.
375 </p>
376
377 <p>
378 As a matter of public policy, courts will generally
379 refer any case back to Arbitration. Members should understand that they will have
380 strictly limited rights to ask the courts to
381 seek to have a case heard or to override a Ruling.
382 </p>
383
384
385 <h3 id="s2.5"> 2.5 External Courts </h3>
386
387 <p>
388 When an external court claims and asserts its jurisdiction,
389 and issues a court order, subpoena or other service to CAcert,
390 the CM files the order as a dispute, with the external court
391 as <em>Claimant</em>.
392 The CM and other support staff are granted no authority to
393 act on the basis of any court order, and ordinarily
394 must await the order of the Arbitrator
395 (which might simply be a repeat of the external court order).
396 </p>
397
398 <p>
399 The Arbitrator establishes the bona fides of the
400 court, and rules.
401 The Arbitrator may rule to reject the order,
402 for jurisdiction or other reasons.
403 By way of example, if all Parties are
404 Members, then jurisdiction more normally falls within the forum.
405 If the Arbitrator rules to reject,
406 he should do so only after consulting with CAcert Inc. counsel.
407 The Arbitrator's jurisidiction is ordinarily that of
408 dealing with the order, and
409 not that which the external court has claimed to.
410 </p>
411
412
413 <h3 id="s2.6"> 2.6 Process</h3>
414
415 <p>
416 The Arbitrator follows the procedure:
417 </p>
418
419
420 <ol><li>
421 Establish the facts.
422 The Arbitrator collects the evidence from the parties.
423 The Arbitrator may order CAcert Inc. or Members
424 under jurisdiction to provide support or information.
425 The Arbitrator may use email, phone or face-to-face
426 meetings as proceedings.
427 </li><li>
428 Apply the Rules of Dispute Resolution,
429 the policies of CAcert and the governing law.
430 The Arbitrator may request that the parties
431 submit their views.
432 The Arbitrator also works to the mission of CAcert,
433 the benefit of all Members, and the community as a whole.
434 The Arbitrator may seek any assistance.
435 </li><li>
436 Makes a considered Ruling.
437 </li></ol>
438
439 <h2 id="s3"> 3. The Ruling</h2>
440
441 <h3 id="s3.1"> 3.1 The Contents </h3>
442
443 <p>
444 The Arbitrator records:
445 </p>
446
447 <ol><li>
448 The Identification of the Parties,
449 </li><li>
450 The Facts,
451 </li><li>
452 The logic of the rules and law,
453 </li><li>
454 The directions and actions to be taken by each party
455 (the ruling).
456 </li><li>
457 The date and place that the ruling is rendered.
458 </li></ol>
459
460
461 <h3 id="s3.2"> 3.2 Process </h3>
462 <p>
463 Once the Ruling is delivered, the case is closed.
464 The Case Manager is responsible for recording the
465 Ruling, publishing it, and advising Members.
466 </p>
467
468 <p>
469 Proceedings are ordinarily private.
470 The Ruling is ordinarily published,
471 within the bounds of the Privacy Policy.
472 The Ruling is written in English.
473 </p>
474
475 <p>
476 Only under exceptional circumstances can the
477 Arbitrator declare the Ruling private <em>under seal</em>.
478 Such a declaration must be reviewed in its entirety
479 by the Board,
480 and the Board must confirm or deny that declaration.
481 If it confirms, the existence of any Rulings under seal
482 must be published to the Members in a timely manner (within days).
483 </p>
484
485 <h3 id="s3.3"> 3.3 Binding and Final </h3>
486
487 <p>
488 The Ruling is
489 <!-- (DRAFT p20110108) -->
490 ordinarily final and binding
491 on CAcert Inc. and all Members.
492 Ordinarily, all Members agree to be bound by this dispute
493 resolution policy. Members must declare in the Preliminaries
494 any default in agreement or binding.
495 </p>
496
497 <p>
498 If a person who is not a Member is a party to the dispute,
499 then the Ruling is not binding and final on that person,
500 but the Ruling must be presented in filing any dispute
501 in another forum such as the person's local courts.
502 </p>
503
504 <h3 id="s3.4"> 3.4 Review for Appeal (DRAFT p20110108)</h3>
505
506 <p>
507 In the event of clear injustices, egregious behaviour or
508 unconscionable Rulings,
509 a review may be requested by filing a dispute (DRAFT p20110108).
510 The new Arbitrator reviews the new dispute,
511 re-examines and reviews the entire case, then rules on
512 whether the case may be re-opened or not.
513 </p>
514
515 <p>
516 If the Review Arbitrator rules the case be re-opened,
517 then the Review Arbitrator refers the case to an Appeal Panel of 3.
518 The Appeal Panel is led by a Senior Arbitrator,
519 and is formed according to procedures established
520 by the DRO from time to time.
521 The Appeal Panel hears the case and delivers a final and binding Ruling.
522 (DRAFT p20110108)
523 </p>
524
525 <h3 id="s3.5"> 3.5 Liability </h3>
526
527 <p>
528 All liability of the Arbitrator for any act in
529 connection with deciding a dispute is excluded
530 by all parties, provided such act does not constitute
531 an intentional breach of duty.
532 All liability of the Arbitrators, CAcert Inc., its officers and its
533 employees (including Case Manager)
534 for any other act or omission in connection with
535 arbitration proceedings is excluded, provided such acts do not
536 constitute an intentional or grossly negligent breach of duty.
537 </p>
538
539 <p>
540 The above provisions may only be overridden by
541 appeal process
542
543 <h3 id="s3.6"> 3.6 Remedies </h3>
544
545 <p>
546 The Arbitrator generally instructs using internal remedies,
547 that is ones that are within the general domain of
548 the Community, but there are some external remedies at his disposal.
549 He may rule and instruct any of the parties on these issues.
550 </p>
551
552 <ul><li>
553 "community service" typically including
554 <ul><li>
555 attend and assure people at trade shows / open source gatherings,
556 </li><li>
557 writing documentation
558 </li><li>
559 serve in <span class="change2">a</span> role - support, dispute arbitration
560 </li></ul>
561 or others as decided.
562
563 </li><li>
564 Fined by loss of assurance points, which may result
565 in losing Assurer or Assured status.
566
567 </li><li>
568 Retraining in role.
569
570 </li><li>
571 Revoking of any certificates.
572
573 </li><li>
574 Monetary fine up to the liability cap established for
575 each party as described in the CAcert Community Agreement.
576
577 </li><li>
578 Exclusion from community.
579
580 </li><li>
581 Reporting to applicable authorities.
582
583 </li><li>
584 Changes to policies and procedures.
585
586 </li></ul>
587
588 <p>
589 The Arbitrator is not limited within the general domain
590 of CAcert, and may instruct novel remedies as seen fit.
591 Remedies remain subject to appeal.
592 </p>
593
594 <h2 id="s4"> 4. Appendix</h2>
595
596
597 <h3 id="s4.1"> 4.1 The Advantages of this Forum </h3>
598 <p>
599 The advantage of this process for Members is:
600 </p>
601
602 <ul><li>
603 CAcert and Members operate across many jurisdictions.
604 Arbitration allows us to select a single set of
605 rules across all jurisdictions.
606 </li><li>
607 Arbitration allows CAcert to appropriately separate
608 out the routine support actions from difficult dispute
609 actions. Support personnel have no authority to
610 act, the appropriately selected Arbitrator has all
611 authority to act.
612 Good governance is thus maintained.
613 </li><li>
614 This forum allows CAcert Members to look after themselves
615 in a community, without exposing each other to potentially
616 disastrous results in strange courts from foreign lands.
617 </li><li>
618 By volunteering to resolve things "in-house" the costs
619 are reduced.
620 </li><li>
621 Even simple support issues such as password changing
622 can be improved by treating as a dispute. A clear
623 chain of request, analysis, ruling and action can be established.
624 </li><li>
625 CAcert Assurers can develop the understanding and the rules
626 for sorting out own problems far better than courts or
627 other external agencies.
628 </li></ul>
629
630 <h3 id="s4.2"> 4.2 The Disadvantages of this Forum </h3>
631
632 <p>
633 Some disadvantages exist.
634 </p>
635
636 <ul><li>
637 Members may have their rights trampled over.
638 In such a case, the community should strive to re-open the case.
639
640 </li><li>
641 Members may feel overwhelmed by the formality
642 of the process.
643 It is kept formal so as to establish good and proper
644 authority to act; otherwise, support and other
645 people in power may act without thought and with
646 damaging consequences.
647 </li><li>
648 A country may not have an Arbitration Act.
649 In that case, the parties should enter into
650 spirit of the forum.
651 If they choose to break that spirit,
652 they should also depart the community.
653 </li></ul>
654
655 <h3 id="s4.3"> 4.3 Process and Flow </h3>
656
657 <p>
658 To the extent reasonable, the Arbitrator conducts
659 the arbitration as with any legal proceedings.
660 This means that the process and style should follow
661 legal tradition.
662 </p>
663
664 <p>
665 However, the Arbitrator is unlikely to be trained in
666 law. Hence, common sense must be applied, and the
667 Arbitrator has wide latitude to rule on any particular
668 motion, pleading, submission. The Arbitrator's ruling
669 is final within the arbitration.
670 </p>
671
672 <p>
673 Note also that many elements of legal proceedings are
674 deliberately left out of the rules.
675 </p>
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