DRP rev p20121213 for

https://www.cacert.org/policy/DisputeResolutionPolicy.html
through bug# update


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<title>Dispute Resulution Policy</title>
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<p style="text-align: center;">
Colour code:<ul>
<li> <span class="change2">minor and routine tweaks are in steelblue</span>.</li>
<li> DRAFT-approved <span class="draftadd">additions</span> and <span class="draftdrop">subtractions</span> are <span class="draftadd">shown in darkblue</span> as approved by a policy group motion.</li>
</ul>
</p>
<p style="text-align: center;">A history of modifications is maintained at the end.</p>
<hr />
<div class="comment">
<table width="100%">
<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="draftadd">DRAFT p20110108 p20121213</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 - POLICY" height="31" width="88" style="border-style: none;" /></a><br />
<a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="images/cacert-draft.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
<span class="draftdrop">for CAcert</span>
<span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>.
Disputes arising out of
operations by CAcert
<span class="draftadd">Inc</span>
and interactions between
<span class="draftadd">
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="draftadd">
Members;
</span>
</li><li>
Classical disputes where a <span class="draftadd">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 <span class="change2">(DRO)</span>.
</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="draftadd">Member</span> (possibly unidentified) in the
case where one <span class="draftadd">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="draftadd">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
<span class="change2">DRO</span> <!-- 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 <span class="draftdrop">of CAcert</span>.
They should be independent and impartial, including
of CAcert <span class="draftadd">Inc.</span> 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 <span class="draftadd">Inc.</span> and the
<span class="draftadd">
Members of the Community
</span>
vest in Arbitrators
full authority to hear disputes and deliver rulings
which are binding on CAcert <span class="draftadd">Inc.</span> and the
<span class="draftadd">
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 <span class="draftadd">Inc.</span> and other parties
remain 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="draftadd">
Members
</span>
and are not bound by the
<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
are given the opportunity to enter into
CAcert and be bound by the
<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
and these rules of arbitration.
If
<!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> -->
these Non-Related Persons (NRPs)
remain outside,
their rights and remedies under CAcert's policies
and forum are strictly limited to
<span class="strike">that</span> <span class="change2">those</span>
specified in the
<span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>.
NRPs
may proceed with Arbitration subject to preliminary orders
of the Arbitrator.
</li><li>
Participating
<span class="draftadd">
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="draftadd">
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<span class="change2">,</span>
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 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,
counterclaims, and/or statements of defence.
</li></ul>
<h3 id="s2.3"> 2.3 Jurisdiction </h3>
<p>
Jurisdiction - the right or power to hear and rule on
disputes - is initially established by clauses in the
<span class="draftadd">
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="draftadd">
Members
</span>
that were formed without
a clause to seek arbitration in the forum;
</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="draftadd">
Members
</span>
<span class="draftdrop">users of CAcert</span>,
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="draftadd">
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="draftadd">
Members,
</span>
then jurisdiction more normally falls within the forum.
If the Arbitrator rules to reject,
he should do so only after consulting with CAcert <span class="draftadd">Inc.</span> 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 <span class="draftadd">Inc.</span> or
<span class="draftadd">
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="draftadd">
Members
</span>
, and the community as a whole.
The Arbitrator may
<span class="draftadd">
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="draftadd">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 existence of any Rulings under seal
must be published to the
<span class="draftadd">
Members
</span>
in a timely manner
(within days).
</p>
<h3 id="s3.3"> 3.3 Binding and Final </h3>
<p>
The Ruling is
<!-- (DRAFT p20110108) -->
<span class="draftadd">ordinarily final and binding </span>
<span class="draftdrop">binding and final</span>
on CAcert <span class="draftadd">Inc.</span> and all
<span class="draftadd">
Members
</span>
.
Ordinarily, all
<span class="draftadd">
Members
</span>
agree to be bound by this dispute
resolution policy.
<span class="draftadd">
Members
</span>
must declare in the Preliminaries
any default in agreement or binding.
</p>
<p>
If a person who is not a
<span class="draftadd">
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 <span class="draftadd">Review for Appeal (DRAFT p20110108)</span> &nbsp;&nbsp;&nbsp;&nbsp; <span class="draftdrop">Re-opening the Case or Appeal</span> </h3>
<p>
In the <span class="draftadd">event</span> <span class="draftdrop">case</span> of clear injustices, egregious behaviour or
unconscionable Rulings,
<span class="draftadd">
a review may be requested by filing a dispute (DRAFT p20110108).
</span>
<span class="draftdrop">
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="draftadd">
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.
(DRAFT p20110108)
</span>
<span class="draftdrop">
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 <span class="draftadd">Inc.</span>, 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
<span class="draftdrop">CAcert</span>
<span class="draftadd">the Community</span>,
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 <span class="change2">a</span> 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="draftadd">
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 appeal 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="draftadd">
Members
</span>
is:
</p>
<ul><li>
CAcert and <span class="draftadd">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="draftadd">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="draftadd">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="draftadd">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>
<hr />
<p style="text-align: center;">History of modifications:</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>
<ul>
<li>Bernd: 20121221,
p20121213 motion carried. Changes approved under the motion
are shown in <span class="draftadd">darkblue</span>.
</li>
<li>Uli: 20121215,
Modified presentation of outstanding 'board' changes: 3.5, 3.6, 4.2.
These three changes are now shown in <span class="q">green</span> pending policy group debate.
</li>
<li>Bernd: 20121213,
Minor Changes posted on policy group for sections 2.2,3.2,3.4.
</li>
<li>Bernd: 20121211,
Changes posted on policy group for sections 0, 2.2-4.
</li>
<li>Iang: 20121112,
Reviewed changes CAcert to CAcert Inc and to Community.
These are shown in <span class="change">BLUE</span>.
Added a few more.
</li>
<li>Iang: 20110129 <a href="//wiki.cacert.org/PolicyDecisions#p20110108">p20110108</a> approved,
<ul><li>incorporated new text as <span class="draftadd">darkblue</span> and dropped text as <span class="draftdrop">purple</span>,
<li> use of colours to meet PoP 5.3,</li>
<li> fixed some other references to Board as Appeal. Proposed to incorporate these without further discussion.</li>
<li> Reviewed and changed the term CAcert to CAcert Inc. where clear. Proposed to incorporate these without further discussion.</li>
</ul>
</li>
<li>Iang: 20110117 Changed 3.4 title to match the intent of the paras more closely, in <span class="change">BLUE</span>.</li>
<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 below. </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>
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