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DisputeResolutionPolicy.html
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@ -45,13 +45,18 @@
</big> </big>
This document is a <b>work-in-progress</b> to include future revisions only,<br /> 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 /> 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">Additions in BLUE</span> <span class="strike">strikes in BLUE</span> are suggestions for future voting in PG.<br />
</p> </p>
<a href="http://validator.w3.org/check?uri=referer"><img style="float: right; border-width: 0" src="http://www.w3.org/Icons/valid-xhtml11" alt="Valid XHTML 1.1" height="31" width="88" /></a> <a href="http://validator.w3.org/check?uri=referer"><img style="float: right; border-width: 0" src="http://www.w3.org/Icons/valid-xhtml11" alt="Valid XHTML 1.1" height="31" width="88" /></a>
<ul> <ul>
<li> The historical background: The change in terms (below) was an error 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. Therefore, 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> <li>Iang: Added proposed text in <a href="#3.4">3.4</a> to switch the Appeal from the Board back to an Appeals Forum within Arbitration. Shown in <span class="change">BLUE</span>.</li>
<li>Iang <span class="change">20101229</span>: Completed <span class="change">BLUE</span> changes from <i>Users</i> to <i>Members</i>.</li> <li>Iang: Several changes to fix terms up:
<li>Iang <span class="change">20101215</span>: Added <span class="change">BLUE</span>. Term <i>Registered User Agreement</i> changed to CCA, as explained above. </li> <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> </ul>
<hr /> <hr />
@ -88,13 +93,13 @@
</table> </table>
<h2> <a name="0"> 0. </a> Introduction</h2> <h2 id="s0"> <a name="0"> 0. </a> Introduction</h2>
<p> <p>
This is the Dispute Resolution Policy for CAcert. This is the Dispute Resolution Policy for CAcert.
Disputes arising out of Disputes arising out of
operations by CAcert and interactions between operations by CAcert and interactions between
<span class="change"> <span class="change2">
Members Members
</span> </span>
may be addressed through this policy. may be addressed through this policy.
@ -102,7 +107,7 @@ This document also presents the rules for
resolution of disputes. resolution of disputes.
</p> </p>
<h3> <a name="0.1"> 0.1 </a> Nature of Disputes </h3> <h3 id="s0.1"> <a name="0.1"> 0.1 </a> Nature of Disputes </h3>
<p> <p>
Disputes include: Disputes include:
@ -113,11 +118,11 @@ Disputes include:
CAcert support team has no authority to CAcert support team has no authority to
act outside the normal support facilities made act outside the normal support facilities made
available to available to
<span class="change"> <span class="change2">
Members; Members;
</span> </span>
</li><li> </li><li>
Classical disputes where a <span class="change">Member</span> or another Classical disputes where a <span class="change2">Member</span> or another
assert claims and demand remedies; assert claims and demand remedies;
</li><li> </li><li>
Requests by external organisations, including Requests by external organisations, including
@ -126,15 +131,15 @@ Disputes include:
Events initiated for training purposes. Events initiated for training purposes.
</li></ul> </li></ul>
<h2> <a name="1"> 1. </a> Filing</h2> <h2 id="s1"> <a name="1"> 1. </a> Filing</h2>
<h3> <a name="1.1"> 1.1 </a> Filing Party</h3> <h3 id="s1.1"> <a name="1.1"> 1.1 </a> Filing Party</h3>
<p> <p>
Anyone may file a dispute. Anyone may file a dispute.
In filing, they become <i>Claimants</i>. In filing, they become <i>Claimants</i>.
</p> </p>
<h3> <a name="1.2">1.2 </a> Channel for Filing</h3> <h3 id="s1.2"> <a name="1.2">1.2 </a> Channel for Filing</h3>
<p> <p>
Disputes are filed by being sent to the normal 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. on the dispute resolution page of the website.
</p> </p>
<h3> <a name="1.3">1.3 </a> Case Manager</h3> <h3 id="s1.3"> <a name="1.3">1.3 </a> Case Manager</h3>
<p> <p>
The Case Manager (CM) takes control of the filing. The Case Manager (CM) takes control of the filing.
</p> </p>
@ -174,7 +179,7 @@ are Case Managers, by default, or as directed
by the Dispute Resolution Officer. by the Dispute Resolution Officer.
</p> </p>
<h3> <a name="1.4">1.4 </a> Contents</h3> <h3 id="s1.4"> <a name="1.4">1.4 </a> Contents</h3>
<p> <p>
The filing must specify: The filing must specify:
</p> </p>
@ -186,13 +191,13 @@ The filing must specify:
being the <i>Respondent(s)</i>. being the <i>Respondent(s)</i>.
This will be CAcert in the This will be CAcert in the
case of requests for support actions. case of requests for support actions.
It may be a <span class="change">Member</span> (possibly unidentified) in the It may be a <span class="change2">Member</span> (possibly unidentified) in the
case where one <span class="change">Member</span> has given rise to a complaint against another. case where one <span class="change2">Member</span> has given rise to a complaint against another.
</li><li> </li><li>
The <i>Complaint</i>. The <i>Complaint</i>.
For example, a trademark has been infringed, For example, a trademark has been infringed,
privacy has been breached, privacy has been breached,
or a <span class="change">Member</span> has defrauded using a certificate. or a <span class="change2">Member</span> has defrauded using a certificate.
</li><li> </li><li>
The action(s) requested by the filing party The action(s) requested by the filing party
(technically, called the <i>relief</i>). (technically, called the <i>relief</i>).
@ -208,7 +213,7 @@ may refile with the additional information,
attaching the original messages. attaching the original messages.
</p> </p>
<h3> <a name="1.5">1.5 </a> The Arbitrator</h3> <h3 id="s1.5"> <a name="1.5">1.5 </a> The Arbitrator</h3>
<p> <p>
The Case Manager selects the Arbitrator according 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. of CAcert itself where it becomes a party.
</p> </p>
<h2> <a name="2"> 2. </a> The Arbitration</h2> <h2 id="s2"> <a name="2"> 2. </a> The Arbitration</h2>
<h3> <a name="2.1">2.1 </a> Authority</h3> <h3 id="s2.1"> <a name="2.1">2.1 </a> Authority</h3>
<p> <p>
The Board of CAcert and the The Board of CAcert and the
<span class="change"> <span class="change2">
Members of the Community Members of the Community
</span> </span>
vest in Arbitrators vest in Arbitrators
full authority to hear disputes and deliver rulings full authority to hear disputes and deliver rulings
which are binding on CAcert and the which are binding on CAcert and the
<span class="change"> <span class="change2">
Members. Members.
</span> </span>
</p> </p>
<h3> <a name="2.2">2.2 </a> Preliminaries</h3> <h3 id="s2.2"> <a name="2.2">2.2 </a> Preliminaries</h3>
<p> <p>
The Arbitrator conducts some preliminaries: The Arbitrator conducts some preliminaries:
@ -275,7 +280,7 @@ The Arbitrator conducts some preliminaries:
taken. taken.
</li><li> </li><li>
Any parties that are not Any parties that are not
<span class="change"> <span class="change2">
Members Members
</span> </span>
and are not bound and are not bound
@ -289,11 +294,11 @@ The Arbitrator conducts some preliminaries:
of the Arbitrator. of the Arbitrator.
</li><li> </li><li>
Participating Participating
<span class="change"> <span class="change2">
Members Members
</span> </span>
may not resign may not resign
<span class="change"> <span class="change2">
from the Community from the Community
</span> </span>
until the completion of the case. until the completion of the case.
@ -301,7 +306,7 @@ The Arbitrator conducts some preliminaries:
The Arbitrator confirms that all parties accept The Arbitrator confirms that all parties accept
the forum of dispute resolution. the forum of dispute resolution.
This is especially important where a This is especially important where a
<span class="change"> <span class="change2">
Member Member
</span> </span>
might be might be
@ -333,12 +338,12 @@ The Arbitrator conducts some preliminaries:
</li></ul> </li></ul>
<h3> <a name="2.3">2.3 </a> Jurisdiction </h3> <h3 id="s2.3"> <a name="2.3">2.3 </a> Jurisdiction </h3>
<p> <p>
Jurisidiction - the right or power to hear and rule on Jurisidiction - the right or power to hear and rule on
disputes - is initially established by clauses in the disputes - is initially established by clauses in the
<span class="change"> <span class="change2">
CAcert Community Agreement. CAcert Community Agreement.
</span> </span>
The agreement must establish: The agreement must establish:
@ -378,7 +383,7 @@ to be considered carefully:
e.g., fraud; e.g., fraud;
</li><li> </li><li>
Contracts between Contracts between
<span class="change"> <span class="change2">
Members Members
</span> </span>
that were formed without 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. of the NRP to file the ruling as part of the new case.
</p> </p>
<h3> <a name="2.4">2.4 </a> Basis in Law </h3> <h3 id="s2.4"> <a name="2.4">2.4 </a> Basis in Law </h3>
<p> <p>
Each country generally has an Arbitration Act Each country generally has an Arbitration Act
@ -411,7 +416,7 @@ resolution forum.
The Act generally defers to Arbitration The Act generally defers to Arbitration
if the parties have so agreed. if the parties have so agreed.
That is, as That is, as
<span class="change"> <span class="change2">
Members Members
</span> </span>
of CAcert, you agree to resolve of CAcert, you agree to resolve
@ -423,7 +428,7 @@ or <i>alternative dispute resolution</i>.
<p> <p>
As a matter of public policy, courts will generally As a matter of public policy, courts will generally
refer any case back to Arbitration. refer any case back to Arbitration.
<span class="change"> <span class="change2">
Members Members
</span> </span>
should understand that they will have should understand that they will have
@ -432,7 +437,7 @@ seek to have a case heard or to override a Ruling.
</p> </p>
<h3> <a name="2.5">2.5 </a> External Courts </h3> <h3 id="s2.5"> <a name="2.5">2.5 </a> External Courts </h3>
<p> <p>
When an external court claims and asserts its jurisdiction, 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, The Arbitrator may rule to reject the order,
for jurisdiction or other reasons. for jurisdiction or other reasons.
By way of example, if all Parties are By way of example, if all Parties are
<span class="change"> <span class="change2">
Members of CAcert, Members of CAcert,
</span> </span>
then jurisdiction more normally falls within the forum. then jurisdiction more normally falls within the forum.
@ -463,7 +468,7 @@ seek to have a case heard or to override a Ruling.
</p> </p>
<h3> <a name="2.6">2.6 </a> Process</h3> <h3 id="s2.6"> <a name="2.6">2.6 </a> Process</h3>
<p> <p>
The Arbitrator follows the procedure: The Arbitrator follows the procedure:
@ -474,7 +479,7 @@ The Arbitrator follows the procedure:
Establish the facts. Establish the facts.
The Arbitrator collects the evidence from the parties. The Arbitrator collects the evidence from the parties.
The Arbitrator may order CAcert or The Arbitrator may order CAcert or
<span class="change"> <span class="change2">
Members Members
</span> </span>
under jurisdiction to provide support or information. under jurisdiction to provide support or information.
@ -487,12 +492,12 @@ The Arbitrator follows the procedure:
submit their views. submit their views.
The Arbitrator also works to the mission of CAcert, The Arbitrator also works to the mission of CAcert,
the benefit of all the benefit of all
<span class="change"> <span class="change2">
Members Members
</span> </span>
, and the community as a whole. , and the community as a whole.
The Arbitrator may The Arbitrator may
<span class="change"> <span class="change2">
seek (?) seek (?)
</span> </span>
any assistance. any assistance.
@ -500,9 +505,9 @@ The Arbitrator follows the procedure:
Makes a considered Ruling. Makes a considered Ruling.
</li></ol> </li></ol>
<h2> <a name="3"> 3. </a> The Ruling</h2> <h2 id="s3"> <a name="3"> 3. </a> The Ruling</h2>
<h3> <a name="3.1">3.1 </a> The Contents </h3> <h3 id="s3.1"> <a name="3.1">3.1 </a> The Contents </h3>
<p> <p>
The Arbitrator records: The Arbitrator records:
@ -522,11 +527,11 @@ The Arbitrator records:
</li></ol> </li></ol>
<h3> <a name="3.2">3.2 </a> Process </h3> <h3 id="s3.2"> <a name="3.2">3.2 </a> Process </h3>
<p> <p>
Once the Ruling is delivered, the case is closed. Once the Ruling is delivered, the case is closed.
The Case Manager is responsible for recording the The Case Manager is responsible for recording the
Ruling, publishing it, and advising <span class="change">Members</span>. Ruling, publishing it, and advising <span class="change2">Members</span>.
</p> </p>
<p> <p>
@ -544,28 +549,28 @@ by the Board,
and the Board must confirm or deny that declaration. and the Board must confirm or deny that declaration.
If it confirms, the existance of any Rulings under seal If it confirms, the existance of any Rulings under seal
must be published to the must be published to the
<span class="change"> <span class="change2">
Members Members
</span> </span>
in a timely manner in a timely manner
(within days). (within days).
</p> </p>
<h3> <a name="3.3">3.3 </a> Binding and Final </h3> <h3 id="s3.3"> <a name="3.3">3.3 </a> Binding and Final </h3>
<p> <p>
The Ruling is binding and final on CAcert and all The Ruling is binding and final on CAcert and all
<span class="change"> <span class="change2">
Members Members
</span> </span>
. .
Ordinarily, all Ordinarily, all
<span class="change"> <span class="change2">
Members Members
</span> </span>
agree to be bound by this dispute agree to be bound by this dispute
resolution policy. resolution policy.
<span class="change"> <span class="change2">
Members Members
</span> </span>
must declare in the Preliminaries must declare in the Preliminaries
@ -574,7 +579,7 @@ any default in agreement or binding.
<p> <p>
If a person who is not a If a person who is not a
<span class="change"> <span class="change2">
Member Member
</span> </span>
is a party to the dispute, 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. in another forum such as the person's local courts.
</p> </p>
<h3> <a name="3.4">3.4 </a> Re-opening the Case or Appeal </h3> <h3 id="s3.4"> <a name="3.4">3.4 </a> Re-opening the Case or Appeal </h3>
<p> <p>
In the case of clear injustices, egregious behaviour or In the <span class="change">event</span> <span class="strike">case</span> of clear injustices, egregious behaviour or
unconscionable Rulings, parties may seek to re-open the unconscionable Rulings,
case by filing a dispute. The new Arbitrator <span class="change">
reviews the new dispute, 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 re-examines and reviews the entire case, then rules on
whether the case may be re-opened or not. whether the case may be re-opened or not.
</p> </p>
<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, If the new Arbitrator rules the case be re-opened,
then it is referred to the Board of CAcert Inc. then it is referred to the Board of CAcert Inc.
The Board hears the case and delivers a final The Board hears the case and delivers a final
and binding Ruling. and binding Ruling.
</span>
</p> </p>
<h3> <a name="3.5">3.5 </a> Liability </h3> <h3 id="s3.5"> <a name="3.5">3.5 </a> Liability </h3>
<p> <p>
All liability of the Arbitrator for any act in 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). referral to the Board).
</p> </p>
<h3> <a name="3.6">3.6 </a> Remedies </h3> <h3 id="s3.6"> <a name="3.6">3.6 </a> Remedies </h3>
<p> <p>
The Arbitrator generally instructs using internal remedies, The Arbitrator generally instructs using internal remedies,
@ -654,7 +675,7 @@ He may rule and instruct any of the parties on these issues.
</li><li> </li><li>
Monetary fine up to the liability cap established for Monetary fine up to the liability cap established for
each party as described in the each party as described in the
<span class="change"> <span class="change2">
CAcert Community Agreement. CAcert Community Agreement.
</span> </span>
@ -677,20 +698,20 @@ confirmed by the Board by way of appeals process,
in order to establish precedent. in order to establish precedent.
</p> </p>
<h2> <a name="4"> 4. </a> Appendix</h2> <h2 id="s4"> <a name="4"> 4. </a> Appendix</h2>
<h3> <a name="4.1">4.1 </a> The Advantages of this Forum </h3> <h3 id="s4.1"> <a name="4.1">4.1 </a> The Advantages of this Forum </h3>
<p> <p>
The advantage of this process for The advantage of this process for
<span class="change"> <span class="change2">
Members Members
</span> </span>
is: is:
</p> </p>
<ul><li> <ul><li>
CAcert and <span class="change">Members</span> operate across many jurisdictions. CAcert and <span class="change2">Members</span> operate across many jurisdictions.
Arbitration allows us to select a single set of Arbitration allows us to select a single set of
rules across all jurisdictions. rules across all jurisdictions.
</li><li> </li><li>
@ -701,7 +722,7 @@ The advantage of this process for
authority to act. authority to act.
Good governance is thus maintained. Good governance is thus maintained.
</li><li> </li><li>
This forum allows CAcert <span class="change">Members</span> to look after themselves This forum allows CAcert <span class="change2">Members</span> to look after themselves
in a community, without exposing each other to potentially in a community, without exposing each other to potentially
disastrous results in strange courts from foreign lands. disastrous results in strange courts from foreign lands.
</li><li> </li><li>
@ -717,18 +738,18 @@ The advantage of this process for
other external agencies. other external agencies.
</li></ul> </li></ul>
<h3> <a name="4.2">4.2 </a> The Disadvantages of this Forum </h3> <h3 id="s4.2"> <a name="4.2">4.2 </a> The Disadvantages of this Forum </h3>
<p> <p>
Some disadvantages exist. Some disadvantages exist.
</p> </p>
<ul><li> <ul><li>
<span class="change">Members</span> may have their rights trampled over. <span class="change2">Members</span> may have their rights trampled over.
In such a case, the community should strive to In such a case, the community should strive to
re-open the case and refer it to the board. re-open the case and refer it to the board.
</li><li> </li><li>
<span class="change">Members</span> may feel overwhelmed by the formality <span class="change2">Members</span> may feel overwhelmed by the formality
of the process. of the process.
It is kept formal so as to establish good and proper It is kept formal so as to establish good and proper
authority to act; otherwise, support and other authority to act; otherwise, support and other
@ -742,7 +763,7 @@ Some disadvantages exist.
they should also depart the community. they should also depart the community.
</li></ul> </li></ul>
<h3> <a name="4.3">4.3 </a> Process and Flow </h3> <h3 id="s4.3"> <a name="4.3">4.3 </a> Process and Flow </h3>
<p> <p>
To the extent reasonable, the Arbitrator conducts To the extent reasonable, the Arbitrator conducts