cacert-policies/DisputeResolutionPolicy.html

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        <p style="text-align: center;">
        <big>
        <br /><b>WARNING:</b><br />
        The proper policy document is located<br />
        <a href="//www.cacert.org/policy/DisputeResolutionPolicy.php">
        on the CAcert website </a>.<br />
        </big>
        This document is a <b>work-in-progress</b> to include future revisions only,<br />
        and is currently <b>only relevant for the [policy] group</b>.<br />
        <span class="change">Additions in BLUE</span>  <span class="strike">strikes in BLUE</span> are suggestions for future voting in PG.<br />
        <span class="change2">minor and routine tweaks are in steelblue</span>.<br />
        </p>
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     <ul>
        <li>Iang: 20110112 Tuned text in <a href="#3.3">3.3</a> to reflect ultimate final &amp; binding status in 3.4.  Also swapped order of terms to more customary form. Shown in <span class="change">BLUE</span>.</li>
        <li>Iang: 20110107 <b>Added proposed text in <a href="#3.4">3.4</a> to switch the Appeal from the Board to a Panel within Arbitration.</b> Shown in <span class="change">BLUE</span>.  This change is substantive. </li>
        <li>Iang: Several changes to fix terms up:
        <ul>
          <li><span class="change2">20101229</span>: Completed <span class="change2">steelblue</span> changes from <i>Users</i> to <i>Members</i>.</li>
          <li><span class="change2">20101215</span>: Added <span class="change2">steelblue</span>.  Term <i>Registered User Agreement</i> changed to CCA, as explained above. </li>
          <li> The historical background:  The change in terms (shown in <span class="change2">steelblue</span>) repair errors in production.  The DRP ran ahead of other documents especially CCA in its approval process.  Later on, in policy group, <a href="//wiki.cacert.org/PolicyDecisions#p20080106.1">we changed the term <i>User</i> to <i>Member</i></a>, at 11th hour in the approval process for CCA. </li>
         <li> <b> Therefore</b>, with addition of <a href="//wiki.cacert.org/PolicyDecisions#p20100306">p20100306</a>, this change is proposed by Policy Officer to be incorporated into next approved change without a vote on these changes in terms.  If anyone wants to put it to the vote, go ahead!  </li>
       </ul></li>
     </ul>
  <hr />


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<tr>
<td>
  Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
  Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br />
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;           <span class="change">WIP since 20101215</span> <br />
  Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen
</a><br />
   Licence: <a style="color: steelblue" href="//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>
<td valign="top" align="right">
  <a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="images/cacert-policy.png" alt="TTP-Assist Status - DRAFT" height="31" width="88" style="border-style: none;" /></a>

</td>
</tr>
</table>
</div>


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

<h2 id="s0">  0. Introduction</h2>

<p>
This is the Dispute Resolution Policy for CAcert.
Disputes arising out of
operations by CAcert and interactions between
<span class="change2">
Members
</span>
may be addressed through this policy.
This document also presents the rules for
resolution of disputes.
</p>

<h3 id="s0.1">  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 
    <span class="change2">
    Members;
    </span>
  </li><li>
    Classical disputes where a <span class="change2">Member</span> 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="s1">  1. Filing</h2>

<h3 id="s1.1">  1.1 Filing Party</h3>
<p>
Anyone may file a dispute.
In filing, they become <i>Claimants</i>.
</p>

<h3 id="s1.2"> 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="s1.3"> 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.
</p>

<h3 id="s1.4"> 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 <span class="change2">Member</span> (possibly unidentified) in the
    case where one <span class="change2">Member</span> 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 <span class="change2">Member</span> 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="s1.5"> 1.5 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 id="s2">  2. The Arbitration</h2>


<h3 id="s2.1"> 2.1  Authority</h3>

<p>
The Board of CAcert and the 
<span class="change2">
Members of the Community
</span>
 vest in Arbitrators
full authority to hear disputes and deliver rulings
which are binding on CAcert and the
<span class="change2">
Members.
</span>
</p>


<h3 id="s2.2"> 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 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 personnel may be joined if emergency action was
   taken.
  </li><li>
   Any parties that are not 
   <span class="change2">
   Members
   </span>
   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 
   <span class="change2">
   Members
   </span>
   may not resign
   <span class="change2">
   from the Community
   </span>
   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
   <span class="change2">
   Member
   </span>
   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 id="s2.3"> 2.3  Jurisdiction </h3>

<p>
Jurisidiction - the right or power to hear and rule on
disputes - is initially established by clauses in the
<span class="change2">
CAcert Community Agreement.
</span>
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 
   <span class="change2">
    Members
   </span>
    that were formed without
    a clause to seek arbitration in the forum;
   <ul class="q"><li> Refer to issue of contracting out;  more certainty might be required on this point. </li></ul>
  </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="s2.4"> 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 
   <span class="change2">
   Members
   </span>
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.
   <span class="change2">
   Members
   </span>
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="s2.5"> 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
    <span class="change2">
    Members of CAcert,
    </span>
    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 id="s2.6"> 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 or
   <span class="change2">
   Members
   </span>
    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
   <span class="change2">
   Members
   </span>
    , and the community as a whole.
    The Arbitrator may
    <span class="change2">
    seek (?)
    </span>
    any assistance.
  </li><li>
    Makes a considered Ruling.
</li></ol>

<h2 id="s3">  3. The Ruling</h2>

<h3 id="s3.1"> 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="s3.2"> 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 <span class="change2">Members</span>.
</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
   <span class="change2">
   Members
   </span>
in a timely manner
(within days).
</p>

<h3 id="s3.3"> 3.3  Binding and Final </h3>

<p>
The Ruling is
<span class="change">ordinarily final and binding</span>
<span class="strike">binding and final</span>
on CAcert and all
   <span class="change2">
   Members
   </span>
.
Ordinarily, all
   <span class="change2">
   Members
   </span>
 agree to be bound by this dispute
resolution policy.
   <span class="change2">
   Members
   </span>
must declare in the Preliminaries
any default in agreement or binding.
</p>

<p>
If a person who is not a
   <span class="change2">
   Member
   </span>
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="s3.4"> 3.4  Re-opening the Case or Appeal </h3>

<p>
In the <span class="change">event</span> <span class="strike">case</span> of clear injustices, egregious behaviour or
unconscionable Rulings,
<span class="change">
a review may be requested by filing a dispute.
</span>
<span class="strike">
parties may seek to re-open the
case by filing a dispute.
</span>
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>
<span class="change">
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.
</span>
<span class="strike">
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.
</span>
</p>

<h3 id="s3.5"> 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, 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="s3.6"> 3.6  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
    <span class="change2">
    CAcert Community Agreement.
    </span>

  </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 id="s4">  4. Appendix</h2>


<h3 id="s4.1"> 4.1  The Advantages of this Forum </h3>
<p>
The advantage of this process for
   <span class="change2">
   Members
   </span>
 is:
</p>

<ul><li>
    CAcert and <span class="change2">Members</span> 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 <span class="change2">Members</span> 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="s4.2"> 4.2  The Disadvantages of this Forum </h3>

<p>
Some disadvantages exist.
</p>

<ul><li>
     <span class="change2">Members</span> 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>
     <span class="change2">Members</span> 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="s4.3"> 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>

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