From 31becb83ade8cf562630587ad579894194a477f4 Mon Sep 17 00:00:00 2001 From: Ian Grigg Date: Fri, 21 Dec 2012 12:32:52 +0000 Subject: [PATCH] Bernd's p20121213 git-svn-id: http://svn.cacert.org/CAcert/Policies@2438 14b1bab8-4ef6-0310-b690-991c95c89dfd --- DisputeResolutionPolicy.html | 200 +++++++++++++++++++---------------- 1 file changed, 107 insertions(+), 93 deletions(-) diff --git a/DisputeResolutionPolicy.html b/DisputeResolutionPolicy.html index 315eb85..209e6f1 100644 --- a/DisputeResolutionPolicy.html +++ b/DisputeResolutionPolicy.html @@ -36,8 +36,9 @@ font-style: italic; } .draftdrop { - color : purple; + color : darkblue; text-decoration:line-through; + font-style: italic; } --> @@ -55,50 +56,19 @@ This document is for the purposes of policy group preparing work-in-progress and DRAFT future revisions.
It is primarily relevant for the [policy] group.
- Any approved DRAFT changes in here should not be relied upon, - and will need to be confirmed within a relevant Arbitration.
+ Any approved DRAFT change herein may be considered,
+ as an Arbitrator will likely enforce their effect,
+ but they are unlikely to effect most disputes.
+
Colour code:

- Valid XHTML 1.1 +

A history of modifications is maintained at the end.

-
@@ -109,7 +79,7 @@ Name: DRP COD7
Status: POLICY m20070919.3
-             DRAFT p20110108
+             DRAFT p20110108 p20121213
            WIP since 20101215
Editor: Teus Hagen
@@ -129,15 +99,14 @@

0. Introduction

-This is the Dispute Resolution Policy for -the -CAcert -Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA). +This is the Dispute Resolution Policy +for CAcert +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 +Inc and interactions between - + Members may be addressed through this policy. @@ -156,11 +125,11 @@ Disputes include: CAcert support team has no authority to act outside the normal support facilities made available to - + Members;

  • - Classical disputes where a Member or another + Classical disputes where a Member or another assert claims and demand remedies;
  • Requests by external organisations, including @@ -229,13 +198,13 @@ The filing must specify: being the Respondent(s). 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. + It may be a Member (possibly unidentified) in the + case where one Member has given rise to a complaint against another.
  • The Complaint. For example, a trademark has been infringed, privacy has been breached, - or a Member has defrauded using a certificate. + or a Member has defrauded using a certificate.
  • The action(s) requested by the filing party (technically, called the relief). @@ -269,9 +238,9 @@ closed with status "declined."

    -Arbitrators are experienced Assurers of CAcert. +Arbitrators are experienced Assurers of CAcert. They should be independent and impartial, including -of CAcert Inc. itself where it becomes a party. +of CAcert Inc. itself where it becomes a party.

    2. The Arbitration

    @@ -280,14 +249,14 @@ of CAcert Inc. itself where it becomes a party.

    2.1 Authority

    -The Board of CAcert Inc. and the - +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 - +which are binding on CAcert Inc. and the + Members.

    @@ -310,7 +279,7 @@ The Arbitrator conducts some preliminaries: 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 + and especially, CAcert Inc. and other parties remain under the governing law.
  • The Arbitrator reviews the Respondents and Claimants @@ -319,14 +288,14 @@ The Arbitrator conducts some preliminaries: taken.
  • Any parties that are not - + Members and are not bound by the - CPS CCA + CPS CCA are given the opportunity to enter into CAcert and be bound by the - CPS CCA + CPS CCA and these rules of arbitration. If @@ -334,16 +303,15 @@ The Arbitrator conducts some preliminaries: remain outside, their rights and remedies under CAcert's policies and forum are strictly limited to - that those + that those specified in the - Non-Related Persons -- Disclaimer and Licence Root Distribution License. - + Non-Related Persons -- Disclaimer and Licence Root Distribution License. NRPs may proceed with Arbitration subject to preliminary orders of the Arbitrator.
  • Participating - + Members may not resign @@ -355,7 +323,7 @@ The Arbitrator conducts some preliminaries: The Arbitrator confirms that all parties accept the forum of dispute resolution. This is especially important where a - + Member might be @@ -392,7 +360,7 @@ The Arbitrator conducts some preliminaries:

    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: @@ -432,7 +400,7 @@ to be considered carefully: e.g., fraud;

  • Contracts between - + Members that were formed without @@ -468,10 +436,10 @@ resolution forum. The Act generally defers to Arbitration if the parties have so agreed. That is, as - + Members -of CAcert, +users of CAcert, you agree to resolve all disputes before CAcert's forum. This is sometimes called private law @@ -481,7 +449,7 @@ or alternative dispute resolution.

    As a matter of public policy, courts will generally refer any case back to Arbitration. - + Members should understand that they will have @@ -509,12 +477,12 @@ seek to have a case heard or to override a Ruling. 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. + 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. @@ -531,8 +499,8 @@ The Arbitrator follows the procedure:

    1. Establish the facts. The Arbitrator collects the evidence from the parties. - The Arbitrator may order CAcert Inc. or - + The Arbitrator may order CAcert Inc. or + Members under jurisdiction to provide support or information. @@ -545,12 +513,12 @@ The Arbitrator follows the procedure: 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. @@ -584,7 +552,7 @@ The Arbitrator records:

      Once the Ruling is delivered, the case is closed. The Case Manager is responsible for recording the -Ruling, publishing it, and advising Members. +Ruling, publishing it, and advising Members.

      @@ -602,7 +570,7 @@ 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 @@ -613,20 +581,21 @@ in a timely manner

      The Ruling is -ordinarily final and binding (DRAFT p20110108) + +ordinarily final and binding binding and final -on CAcert Inc. and all - +on CAcert Inc. and all + Members . Ordinarily, all - + Members agree to be bound by this dispute resolution policy. - + Members must declare in the Preliminaries @@ -635,7 +604,7 @@ any default in agreement or binding.

      If a person who is not a - + Member is a party to the dispute, @@ -686,7 +655,7 @@ 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 +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 @@ -710,7 +679,8 @@ appeal process

      The Arbitrator generally instructs using internal remedies, that is ones that are within the general domain of -CAcert the Community, +CAcert +the Community, but there are some external remedies at his disposal. He may rule and instruct any of the parties on these issues.

      @@ -739,7 +709,7 @@ He may rule and instruct any of the parties on these issues.
    2. Monetary fine up to the liability cap established for each party as described in the - + CAcert Community Agreement. @@ -774,14 +744,14 @@ in order to establish precedent.

      4.1 The Advantages of this Forum

      The advantage of this process for - + Members is:

      • - CAcert and Members operate across many jurisdictions. + CAcert and Members operate across many jurisdictions. Arbitration allows us to select a single set of rules across all jurisdictions.
      • @@ -792,7 +762,7 @@ The advantage of this process for authority to act. Good governance is thus maintained.
      • - This forum allows CAcert Members to look after themselves + 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.
      • @@ -815,7 +785,7 @@ Some disadvantages exist.

        • - Members may have their rights trampled over. + Members 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. @@ -828,7 +798,7 @@ Some disadvantages exist.
        • - Members may feel overwhelmed by the formality + 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 @@ -864,5 +834,49 @@ Note also that many elements of legal proceedings are deliberately left out of the rules.

          +
          + +

          History of modifications:

          + Valid XHTML 1.1 + +
            +
          • Bernd: 20121221, + p20121213 motion carried. Changes approved under the motion + are shown in darkblue. +
            • +
          • Uli: 20121215, + Modified presentation of outstanding 'board' changes: 3.5, 3.6, 4.2. + These three changes are now shown in green pending policy group debate. +
            • +
          • Bernd: 20121213, + Minor Changes posted on policy group for sections 2.2,3.2,3.4. +
            • +
          • Bernd: 20121211, + Changes posted on policy group for sections 0, 2.2-4. +
            • +
          • Iang: 20121112, + Reviewed changes CAcert to CAcert Inc and to Community. + These are shown in BLUE. + Added a few more. +
            • +
          • Iang: 20110129 p20110108 approved, +
            • incorporated new text as darkblue and dropped text as purple, +
            • use of colours to meet PoP 5.3,
              • +
            • fixed some other references to Board as Appeal. Proposed to incorporate these without further discussion.
              • +
            • Reviewed and changed the term CAcert to CAcert Inc. where clear. Proposed to incorporate these without further discussion.
              • +
            +
            • +
          • Iang: 20110117 Changed 3.4 title to match the intent of the paras more closely, in BLUE.
            • +
          • Iang: 20110112 Tuned text in 3.3 to reflect ultimate final & binding status in 3.4. Also swapped order of terms to more customary form. Shown in BLUE.
            • +
          • Iang: 20110107 Added proposed text in 3.4 to switch the Appeal from the Board to a Panel within Arbitration. Shown in BLUE. This change is substantive.
            • +
          • Iang: Several changes to fix terms up: +
              +
            • 20101229: Completed steelblue changes from Users to Members.
              • +
            • 20101215: Added steelblue. Term Registered User Agreement changed to CCA, as explained below.
              • +
            • The historical background: The change in terms (shown in steelblue) repair errors in production. The DRP ran ahead of other documents especially CCA in its approval process. Later on, in policy group, we changed the term User to Member, at 11th hour in the approval process for CCA.
              • +
            • Therefore, with addition of p20100306, 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!
              • +
            • +
          +