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Fix for https://bugs.cacert.org/view.php?id=1131 "Rename _all_ Policies from .php to .html and fix all links (was: Rename PolicyOnPolicy.php to .html)"
2015-01-08 15:02:47 +00:00
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Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a>
<br>
Status: POLICY <a href="https://wiki.cacert.org/PolicyDecisions#p20140731">p20140731</a>
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Created: m20070919.3
<br>
Changed: p20110108, p20121213, p20130116
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Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
</a>
<br>
Licence: <a style="color: steelblue" href="https://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>
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<a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
<a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
<img src="images/cacert-policy.png" alt="DRP Status - POLICY" style="border-style: none;" height="31" width="88">
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<h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>
<h2 id="g0.1">0. Introduction</h2>
<p>
This is the Dispute Resolution Policy
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.
</p>
<h3 id="g0.1.1">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
Members;
</li>
<li>
Classical disputes where a Member 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="g0.2">1. Filing</h2>
<h3 id="g0.2.1">1.1. Filing Party</h3>
<p>
Anyone may file a dispute.
In filing, they become <i>Claimants</i>.
</p>
<h3 id="g0.2.2">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="g0.2.3">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 (DRO).
</p>
<h3 id="g0.2.4">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 Member (possibly unidentified) in the
case where one Member 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 Member 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="g0.2.5">1.5. The Arbitrator</h3>
<p>
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."
</p>
<p>
Arbitrators are experienced Assurers.
They should be independent and impartial, including
of CAcert Inc. itself where it becomes a party.
</p>
<h2 id="g0.3">2. The Arbitration</h2>
<h3 id="g0.3.1">2.1. Authority</h3>
<p>
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.
</p>
<h3 id="g0.3.2">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 Inc. 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
Members
and are not bound by the
CCA
are given the opportunity to enter into
CAcert and be bound by the
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
those
specified in the
Root Distribution License.
NRPs
may proceed with Arbitration subject to preliminary orders
of the Arbitrator.
</li>
<li>
Participating
Members
may not resign
from the Community
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
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.
</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,
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="g0.3.3">2.3. Jurisdiction </h3>
<p>
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:
</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
Members
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="g0.3.4">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
Members
,
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.
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.
</p>
<h3 id="g0.3.5">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
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.
</p>
<h3 id="g0.3.6">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 Inc. or
Members
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
Members
, and the community as a whole.
The Arbitrator may
seek
any assistance.
</li>
<li>
Makes a considered Ruling.
</li>
</ol>
<h2 id="g0.4">3. The Ruling</h2>
<h3 id="g0.4.1">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="g0.4.2">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 Members.
</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
Members
in a timely manner
(within days).
</p>
<h3 id="g0.4.3">3.3. Binding and Final </h3>
<p>
The Ruling is
ordinarily final and binding
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.
</p>
<p>
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.
</p>
<h3 id="g0.4.4">3.4. Review for Appeal</h3>
<p>
In the eventof clear injustices, egregious behaviour or
unconscionable Rulings,
a review may be requested 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.
</p>
<p>
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.
</p>
<h3 id="g0.4.5">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 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.
</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="g0.4.6">3.6. Remedies </h3>
<p>
The Arbitrator generally instructs using internal remedies,
that is ones that are within the general domain of
the Community,
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 a 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
CAcert Community Agreement.
</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="g0.5">4. Appendix</h2>
<h3 id="g0.5.1">4.1. The Advantages of this Forum </h3>
<p>
The advantage of this process for
Members
is:
</p>
<ul>
<li>
CAcert and Members 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 Members 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="g0.5.2">4.2. The Disadvantages of this Forum </h3>
<p>
Some disadvantages exist.
</p>
<ul>
<li>
Membersmay 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>
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.
</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="g0.5.3">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>
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