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+
+
+
+
+
+ Dispute Resulution Policy
+
+
+
+
+
+
+ Colour code:
+ - minor and routine tweaks are in steelblue.
+ - DRAFT-approved additions and subtractions are shown in darkblue as approved by a policy group motion.
+
+
+ A history of modifications is maintained at the end.
+
+
+
+
+
+
+
+ Dispute Resolution Policy
+
+ 0. Introduction
+
+
+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
+and interactions between
+
+Members
+
+may be addressed through this policy.
+This document also presents the rules for
+resolution of disputes.
+
+
+ 0.1 Nature of Disputes
+
+
+Disputes include:
+
+
+-
+ Requests for non-routine support actions.
+ CAcert support team has no authority to
+ act outside the normal support facilities made
+ available to
+
+ Members;
+
+
-
+ Classical disputes where a Member or another
+ assert claims and demand remedies;
+
-
+ Requests by external organisations, including
+ legal processes from foreign courts;
+
-
+ Events initiated for training purposes.
+
+
+ 1. Filing
+
+ 1.1 Filing Party
+
+Anyone may file a dispute.
+In filing, they become Claimants.
+
+
+ 1.2 Channel for Filing
+
+
+Disputes are filed by being sent to the normal
+support channel of CAcert,
+and a fee may be payable.
+
+
+
+Such fees as are imposed on filing will be specified
+on the dispute resolution page of the website.
+
+
+ 1.3 Case Manager
+
+The Case Manager (CM) takes control of the filing.
+
+
+-
+ CM makes an initial determination as
+ to whether this filing is a dispute
+ for resolution, or it is a request
+ for routine support.
+
-
+ CM logs the case and establishes such
+ documentation and communications support as is customary.
+
-
+ If any party acts immediately on the filing
+ (such as an urgent security action),
+ the CM names these parties to the case.
+
-
+ CM selects the Arbitrator.
+
+
+
+The personnel within the CAcert support team
+are Case Managers, by default, or as directed
+by the Dispute Resolution Officer (DRO).
+
+
+ 1.4 Contents
+
+The filing must specify:
+
+
+-
+ The filing party(s), being the Claimant(s).
+
-
+ The party(s) to whom the complaint is addressed to,
+ 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.
+
-
+ The Complaint.
+ For example, a trademark has been infringed,
+ privacy has been breached,
+ or a Member has defrauded using a certificate.
+
-
+ The action(s) requested by the filing party
+ (technically, called the relief).
+ For example, to delete an account,
+ to revoke a certificate, or to stop a
+ trademark infringement.
+
+
+
+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.
+
+
+ 1.5 The Arbitrator
+
+
+The Case Manager selects the Arbitrator according
+to the mechanism managed by the
+DRO
+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."
+
+
+
+Arbitrators are experienced Assurers of CAcert.
+They should be independent and impartial, including
+of CAcert Inc. itself where it becomes a party.
+
+
+ 2. The Arbitration
+
+
+ 2.1 Authority
+
+
+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
+
+Members.
+
+
+
+
+ 2.2 Preliminaries
+
+
+The Arbitrator conducts some preliminaries:
+
+
+-
+ The Arbitrator reviews the available documentation
+ and affirms the rules of dispute resolution.
+ Jurisdiction is established, see below.
+
-
+ 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 Inc. and other parties
+ remain under the governing law.
+
-
+ 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.
+
-
+ Any parties that are not
+
+ Members
+
+ and are not bound by the
+ CPS CCA
+ are given the opportunity to enter into
+ CAcert and be bound by the
+ CPS CCA
+ 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 those
+ specified in the
+ 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
+
+ from the Community
+
+ until the completion of the case.
+
-
+ The Arbitrator confirms that all parties accept
+ the forum of dispute resolution.
+ This is especially important where a
+
+ Member
+
+ 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.
+
-
+ 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.
+
-
+ The Arbitrator may appoint experienced Assurers
+ to assist and represent parties, especially for NRPs.
+ The Case Manager must not provide such assistance.
+
-
+ The Arbitrator is bound to maintain the balance
+ of legal fairness.
+
-
+ The Arbitrator may make any preliminary orders,
+ including protection orders and orders referring
+ to emergency actions already taken.
+
-
+ The Arbitrator may request any written pleadings,
+ counterclaims, and/or statements of defence.
+
+
+
+ 2.3 Jurisdiction
+
+
+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:
+
+
+-
+ That all Parties agree to binding Arbitration
+ in CAcert's forum of dispute resolution;
+
-
+ for all disputes relating to activities within
+ CAcert, issued certificates, roles and actions, etc;
+
-
+ as defined by these rules, including the selection
+ of a single Arbitrator;
+
-
+ under the Law of NSW, Australia; and
+
-
+ the Parties keep email accounts in good working order.
+
+
+
+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:
+
+
+-
+ 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;
+
-
+ criminal actions or actions likely to result in criminal
+ proceedings,
+ e.g., fraud;
+
-
+ Contracts between
+
+ Members
+
+ that were formed without
+ a clause to seek arbitration in the forum;
+
-
+ Areas where laws fall outside the Arbitration Act,
+ such as privacy;
+
-
+ Legal process (subpoenas, etc) delivered by
+ an external court of "competent jurisdiction."
+
+
+
+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.
+
+
+ 2.4 Basis in Law
+
+
+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
+
+ Members
+
+users of CAcert,
+you agree to resolve
+all disputes before CAcert's forum.
+This is sometimes called private law
+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
+strictly limited rights to ask the courts to
+seek to have a case heard or to override a Ruling.
+
+
+
+ 2.5 External Courts
+
+
+ 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 Claimant.
+ 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).
+
+
+
+ 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
+
+ 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.
+ The Arbitrator's jurisidiction is ordinarily that of
+ dealing with the order, and
+ not that which the external court has claimed to.
+
+
+
+ 2.6 Process
+
+
+The Arbitrator follows the procedure:
+
+
+
+-
+ Establish the facts.
+ The Arbitrator collects the evidence from the parties.
+ The Arbitrator may order CAcert Inc. or
+
+ Members
+
+ under jurisdiction to provide support or information.
+ The Arbitrator may use email, phone or face-to-face
+ meetings as proceedings.
+
-
+ 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
+
+ Members
+
+ , and the community as a whole.
+ The Arbitrator may
+
+ seek
+
+ any assistance.
+
-
+ Makes a considered Ruling.
+
+
+ 3. The Ruling
+
+ 3.1 The Contents
+
+
+The Arbitrator records:
+
+
+-
+ The Identification of the Parties,
+
-
+ The Facts,
+
-
+ The logic of the rules and law,
+
-
+ The directions and actions to be taken by each party
+ (the ruling).
+
-
+ The date and place that the ruling is rendered.
+
+
+
+ 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.
+
+
+
+Proceedings are ordinarily private.
+The Ruling is ordinarily published,
+within the bounds of the Privacy Policy.
+The Ruling is written in English.
+
+
+
+Only under exceptional circumstances can the
+Arbitrator declare the Ruling private under seal.
+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
+
+ Members
+
+in a timely manner
+(within days).
+
+
+ 3.3 Binding and Final
+
+
+The Ruling is
+
+ordinarily final and binding
+binding and final
+on CAcert Inc. and all
+
+ Members
+
+.
+Ordinarily, all
+
+ Members
+
+ agree to be bound by this dispute
+resolution policy.
+
+ Members
+
+must declare in the Preliminaries
+any default in agreement or binding.
+
+
+
+If a person who is not a
+
+ Member
+
+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.
+
+
+ 3.4 Review for Appeal (DRAFT p20110108) Re-opening the Case or Appeal
+
+
+In the event case of clear injustices, egregious behaviour or
+unconscionable Rulings,
+
+a review may be requested by filing a dispute (DRAFT p20110108).
+
+
+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.
+ (DRAFT p20110108)
+
+
+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
+
+
+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
+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.
+
+
+
+The above provisions may only be overridden by
+appeal process
+ (by means of a new dispute causing referral to the Board).
+
+
+
+ 3.6 Remedies
+
+
+The Arbitrator generally instructs using internal remedies,
+that is ones that are within the general domain of
+CAcert
+the Community,
+but there are some external remedies at his disposal.
+He may rule and instruct any of the parties on these issues.
+
+
+-
+ "community service" typically including
+
-
+ attend and assure people at trade shows / open source gatherings,
+
-
+ writing documentation
+
-
+ serve in a role - support, dispute arbitration
+
+ or others as decided.
+
+ -
+ Fined by loss of assurance points, which may result
+ in losing Assurer or Assured status.
+
+
-
+ Retraining in role.
+
+
-
+ Revoking of any certificates.
+
+
-
+ Monetary fine up to the liability cap established for
+ each party as described in the
+
+ CAcert Community Agreement.
+
+
+
-
+ Exclusion from community.
+
+
-
+ Reporting to applicable authorities.
+
+
-
+ Changes to policies and procedures.
+
+
+
+
+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.
+
+
+
+ 4. Appendix
+
+
+ 4.1 The Advantages of this Forum
+
+The advantage of this process for
+
+ Members
+
+ is:
+
+
+-
+ CAcert and Members operate across many jurisdictions.
+ Arbitration allows us to select a single set of
+ rules across all jurisdictions.
+
-
+ 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.
+
-
+ 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.
+
-
+ By volunteering to resolve things "in-house" the costs
+ are reduced.
+
-
+ 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.
+
-
+ CAcert Assurers can develop the understanding and the rules
+ for sorting out own problems far better than courts or
+ other external agencies.
+
+
+ 4.2 The Disadvantages of this Forum
+
+
+Some disadvantages exist.
+
+
+-
+ 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
+ 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.
+
-
+ 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.
+
+
+ 4.3 Process and Flow
+
+
+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.
+
+
+
+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.
+
+
+
+Note also that many elements of legal proceedings are
+deliberately left out of the rules.
+
+
+
+
+ History of modifications:
+
+
+
+ - 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!
+
+
+
+
+
+ Status: POLICY m20070919.3
+ DRAFT p20110108 p20121213
+ Editor: Teus Hagen +
+ Licence: CC-by-sa+DRP
+