e9fe661bca
So it doesn't contradicts to header definiton: " DRAFT-approved additions in darkblue and subtractions in purple are already approved by a policy group motion." git-svn-id: http://svn.cacert.org/CAcert/Policies@2430 14b1bab8-4ef6-0310-b690-991c95c89dfd
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868 lines
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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.1//EN"
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"http://www.w3.org/TR/xhtml11/DTD/xhtml11.dtd">
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<html xmlns="http://www.w3.org/1999/xhtml">
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<head>
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<meta http-equiv="CONTENT-TYPE" content="text/html; charset=utf-8" />
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<title>Dispute Resulution Policy</title>
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<style type="text/css">
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<!--
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}
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color : green;
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font-weight: bold;
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text-align: center;
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}
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color : blue;
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font-weight: bold;
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}
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color : steelblue;
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}
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.strike {
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color : blue;
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text-decoration:line-through;
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color : darkblue;
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font-weight: bold;
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font-style: italic;
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}
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.draftdrop {
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color : purple;
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text-decoration:line-through;
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}
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-->
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</style>
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</head>
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<body>
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<p style="text-align: center;">
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<big>
|
|
<br /><b>WARNING:</b><br />
|
|
The proper policy document is located<br />
|
|
<a href="//www.cacert.org/policy/DisputeResolutionPolicy.php">
|
|
on the CAcert website </a>.<br />
|
|
</big>
|
|
This document is for the purposes of policy group
|
|
preparing <b>work-in-progress</b> and <b>DRAFT</b> future revisions.<br />
|
|
It is primarily <b>relevant for the [policy] group</b>.<br />
|
|
Any approved DRAFT changes in here should not be relied upon,
|
|
and will need to be confirmed within a relevant Arbitration.<br />
|
|
Colour code:<ul>
|
|
<li> <span class="change">Additions in BLUE</span> <span class="strike">strikes in BLUE</span> are suggestions for future voting in PG.</li>
|
|
<li> <span class="change2">minor and routine tweaks are in steelblue</span>.</li>
|
|
<li> DRAFT-approved <span class="draftadd">additions in darkblue</span> and <span class="draftdrop">subtractions in purple</span> are already approved by a policy group motion.</li>
|
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</ul>
|
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</p>
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<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>
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|
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<ul>
|
|
<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 & binding status in 3.4. Also swapped order of terms to more customary form. Shown in <span class="change">BLUE</span>.</li>
|
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<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>
|
|
<hr />
|
|
|
|
|
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<div class="comment">
|
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<table width="100%">
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|
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<tr>
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<td>
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|
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 />
|
|
<span class="draftadd">DRAFT p20110108</span> <br />
|
|
<span class="change">WIP since 20101215</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 © 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>
|
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<td valign="top" align="right">
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<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>
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</td>
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</tr>
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</table>
|
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</div>
|
|
|
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|
|
<h1> Dispute Resolution Policy </h1>
|
|
|
|
<h2 id="s0"> 0. Introduction</h2>
|
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|
|
<p>
|
|
This is the Dispute Resolution Policy for
|
|
<span class="change2">the</span>
|
|
CAcert
|
|
<span class="change">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="change">Inc</span>
|
|
and interactions between
|
|
<span class="change2">
|
|
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>
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|
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<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="change2">
|
|
Members;
|
|
</span>
|
|
</li><li>
|
|
Classical disputes where a <span class="change2">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="change2">Member</span> (possibly unidentified) in the
|
|
case where one <span class="change2">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="change2">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="strike">of CAcert</span>.
|
|
They should be independent and impartial, including
|
|
of CAcert <span class="change">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="change">Inc.</span> and the
|
|
<span class="change2">
|
|
Members of the Community
|
|
</span>
|
|
vest in Arbitrators
|
|
full authority to hear disputes and deliver rulings
|
|
which are binding on CAcert <span class="change">Inc.</span> and the
|
|
<span class="change2">
|
|
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="change">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="change2">
|
|
Members
|
|
</span>
|
|
and are not bound by the
|
|
<span class="draftdrop">CPS</span> <span class="change">CCA</span>
|
|
are given the opportunity to enter into
|
|
CAcert and be bound by the
|
|
<span class="draftdrop">CPS</span> <span class="change">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="draftdrop">that</span> <span class="change">those</span>
|
|
specified in the
|
|
<span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="change">Root Distribution License</span>.
|
|
<!-- <span class="draftdrop">NRPs </span> <span class="change">, and</span> -->
|
|
NRPs
|
|
may proceed with Arbitration subject to preliminary orders
|
|
of the Arbitrator.
|
|
</li><li>
|
|
Participating
|
|
<span class="change2">
|
|
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="change2">
|
|
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="change2">
|
|
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="change2">
|
|
Members
|
|
</span>
|
|
that were formed without
|
|
a clause to seek arbitration in the forum;
|
|
<ul class="q">
|
|
<li> Refer to issue of contracting out; more certainty might be required on this point. </li>
|
|
<li> s/clause/intent/ ? </li>
|
|
</ul>
|
|
</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="change2">
|
|
Members
|
|
</span>
|
|
<span class="strike">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="change2">
|
|
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="change2">
|
|
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="change">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="change">Inc.</span> or
|
|
<span class="change2">
|
|
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="change2">
|
|
Members
|
|
</span>
|
|
, and the community as a whole.
|
|
The Arbitrator may
|
|
<span class="change2">
|
|
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="change2">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="change2">
|
|
Members
|
|
</span>
|
|
in a timely manner
|
|
(within days).
|
|
</p>
|
|
|
|
<h3 id="s3.3"> 3.3 Binding and Final </h3>
|
|
|
|
<p>
|
|
The Ruling is
|
|
<span class="draftadd">ordinarily final and binding (DRAFT p20110108)</span>
|
|
<span class="draftdrop">binding and final</span>
|
|
on CAcert <span class="change">Inc.</span> and all
|
|
<span class="change2">
|
|
Members
|
|
</span>
|
|
.
|
|
Ordinarily, all
|
|
<span class="change2">
|
|
Members
|
|
</span>
|
|
agree to be bound by this dispute
|
|
resolution policy.
|
|
<span class="change2">
|
|
Members
|
|
</span>
|
|
must declare in the Preliminaries
|
|
any default in agreement or binding.
|
|
</p>
|
|
|
|
<p>
|
|
If a person who is not a
|
|
<span class="change2">
|
|
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> <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="change">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).
|
|
|
|
<ul class="q">
|
|
<li> (by means of a new dispute causing referral to the Board) </li>
|
|
<li> Removal/Replacement to be further discussed on policy group. </li>
|
|
</ul>
|
|
|
|
</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="change">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="change2">
|
|
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.
|
|
|
|
<ul class="q">
|
|
<li> by the Board </li>
|
|
<li> Removal/Replacement to be further discussed on policy group. </li>
|
|
</ul>
|
|
|
|
</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="change2">
|
|
Members
|
|
</span>
|
|
is:
|
|
</p>
|
|
|
|
<ul><li>
|
|
CAcert and <span class="change2">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="change2">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="change2">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.
|
|
|
|
<ul class="q">
|
|
<li> and refer it to the board </li>
|
|
<li> Removal/Replacement to be further discussed on policy group. </li>
|
|
</ul>
|
|
|
|
|
|
|
|
</li><li>
|
|
<span class="change2">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>
|
|
|
|
</body>
|
|
</html>
|