From c369bd0f1f298091571935e8afe2b5dcc1c52686 Mon Sep 17 00:00:00 2001 From: Ian Grigg Date: Sat, 8 Jan 2011 10:59:46 +0000 Subject: [PATCH] added wording for new 3.4 / Appeal. git-svn-id: http://svn.cacert.org/CAcert/Policies@2166 14b1bab8-4ef6-0310-b690-991c95c89dfd --- DisputeResolutionPolicy.html | 153 ++++++++++++++++++++--------------- 1 file changed, 87 insertions(+), 66 deletions(-) diff --git a/DisputeResolutionPolicy.html b/DisputeResolutionPolicy.html index 5fbf567..5d1e70c 100644 --- a/DisputeResolutionPolicy.html +++ b/DisputeResolutionPolicy.html @@ -45,13 +45,18 @@ This document is a work-in-progress to include future revisions only,
and is currently only relevant for the [policy] group.
- Additions in BLUE strikes in BLUE are suggestions for future voting in PG.
+ Additions in BLUE strikes in BLUE are suggestions for future voting in PG.

Valid XHTML 1.1
@@ -88,13 +93,13 @@ -

0. Introduction

+

0. Introduction

This is the Dispute Resolution Policy for CAcert. Disputes arising out of operations by CAcert and interactions between - + Members may be addressed through this policy. @@ -102,7 +107,7 @@ This document also presents the rules for resolution of disputes.

-

0.1 Nature of Disputes

+

0.1 Nature of Disputes

Disputes include: @@ -113,11 +118,11 @@ 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 @@ -126,15 +131,15 @@ Disputes include: Events initiated for training purposes.
    • -

    1. Filing

    +

    1. Filing

    -

    1.1 Filing Party

    +

    1.1 Filing Party

    Anyone may file a dispute. In filing, they become Claimants.

    -

    1.2 Channel for Filing

    +

    1.2 Channel for Filing

    Disputes are filed by being sent to the normal @@ -147,7 +152,7 @@ Such fees as are imposed on filing will be specified on the dispute resolution page of the website.

    -

    1.3 Case Manager

    +

    1.3 Case Manager

    The Case Manager (CM) takes control of the filing.

    @@ -174,7 +179,7 @@ are Case Managers, by default, or as directed by the Dispute Resolution Officer.

    -

    1.4 Contents

    +

    1.4 Contents

    The filing must specify:

    @@ -186,13 +191,13 @@ 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). @@ -208,7 +213,7 @@ may refile with the additional information, attaching the original messages.

    -

    1.5 The Arbitrator

    +

    1.5 The Arbitrator

    The Case Manager selects the Arbitrator according @@ -230,26 +235,26 @@ They should be independent and impartial, including of CAcert itself where it becomes a party.

    -

    2. The Arbitration

    +

    2. The Arbitration

    -

    2.1 Authority

    +

    2.1 Authority

    The Board of CAcert and the - + Members of the Community vest in Arbitrators full authority to hear disputes and deliver rulings which are binding on CAcert and the - + Members.

    -

    2.2 Preliminaries

    +

    2.2 Preliminaries

    The Arbitrator conducts some preliminaries: @@ -275,7 +280,7 @@ The Arbitrator conducts some preliminaries: taken.

  • Any parties that are not - + Members and are not bound @@ -289,11 +294,11 @@ The Arbitrator conducts some preliminaries: of the Arbitrator.
  • Participating - + Members may not resign - + from the Community until the completion of the case. @@ -301,7 +306,7 @@ 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 @@ -333,12 +338,12 @@ The Arbitrator conducts some preliminaries:
    • -

    2.3 Jurisdiction

    +

    2.3 Jurisdiction

    Jurisidiction - the right or power to hear and rule on disputes - is initially established by clauses in the - + CAcert Community Agreement. The agreement must establish: @@ -378,7 +383,7 @@ to be considered carefully: e.g., fraud;

  • Contracts between - + Members that were formed without @@ -402,7 +407,7 @@ another forum, the Arbitrator should seek the agreement of the NRP to file the ruling as part of the new case.

    -

    2.4 Basis in Law

    +

    2.4 Basis in Law

    Each country generally has an Arbitration Act @@ -411,7 +416,7 @@ resolution forum. The Act generally defers to Arbitration if the parties have so agreed. That is, as - + Members of CAcert, you agree to resolve @@ -423,7 +428,7 @@ 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 @@ -432,7 +437,7 @@ seek to have a case heard or to override a Ruling.

    -

    2.5 External Courts

    +

    2.5 External Courts

    When an external court claims and asserts its jurisdiction, @@ -451,7 +456,7 @@ 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 of CAcert, then jurisdiction more normally falls within the forum. @@ -463,7 +468,7 @@ seek to have a case heard or to override a Ruling.

    -

    2.6 Process

    +

    2.6 Process

    The Arbitrator follows the procedure: @@ -474,7 +479,7 @@ The Arbitrator follows the procedure: Establish the facts. The Arbitrator collects the evidence from the parties. The Arbitrator may order CAcert or - + Members under jurisdiction to provide support or information. @@ -487,12 +492,12 @@ 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. @@ -500,9 +505,9 @@ The Arbitrator follows the procedure: Makes a considered Ruling.

    • -

    3. The Ruling

    +

    3. The Ruling

    -

    3.1 The Contents

    +

    3.1 The Contents

    The Arbitrator records: @@ -522,11 +527,11 @@ The Arbitrator records: -

    3.2 Process

    +

    3.2 Process

    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.

    @@ -544,28 +549,28 @@ 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 - + Members in a timely manner (within days).

    -

    3.3 Binding and Final

    +

    3.3 Binding and Final

    The Ruling is binding and final on CAcert and all - + Members . Ordinarily, all - + Members agree to be bound by this dispute resolution policy. - + Members must declare in the Preliminaries @@ -574,7 +579,7 @@ any default in agreement or binding.

    If a person who is not a - + Member is a party to the dispute, @@ -583,25 +588,41 @@ but the Ruling must be presented in filing any dispute in another forum such as the person's local courts.

    -

    3.4 Re-opening the Case or Appeal

    +

    3.4 Re-opening the Case or Appeal

    -In the case of clear injustices, egregious behaviour or -unconscionable Rulings, parties may seek to re-open the -case by filing a dispute. The new Arbitrator -reviews the new dispute, +In the event case of clear injustices, egregious behaviour or +unconscionable Rulings, + +a review may be requested by filing a dispute. + + +parties may seek to re-open the +case by filing a dispute. + +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.

    + +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. + + 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. +

    -

    3.5 Liability

    +

    3.5 Liability

    All liability of the Arbitrator for any act in @@ -621,7 +642,7 @@ appeal process (by means of a new dispute causing referral to the Board).

    -

    3.6 Remedies

    +

    3.6 Remedies

    The Arbitrator generally instructs using internal remedies, @@ -654,7 +675,7 @@ He may rule and instruct any of the parties on these issues.

  • Monetary fine up to the liability cap established for each party as described in the - + CAcert Community Agreement. @@ -677,20 +698,20 @@ confirmed by the Board by way of appeals process, in order to establish precedent.

    -

    4. Appendix

    +

    4. Appendix

    -

    4.1 The Advantages of this Forum

    +

    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.
    • @@ -701,7 +722,7 @@ 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.
    • @@ -717,18 +738,18 @@ The advantage of this process for other external agencies.
    -

    4.2 The Disadvantages of this Forum

    +

    4.2 The Disadvantages of this Forum

    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.
    • - 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 @@ -742,7 +763,7 @@ Some disadvantages exist. they should also depart the community.
    -

    4.3 Process and Flow

    +

    4.3 Process and Flow

    To the extent reasonable, the Arbitrator conducts