You cannot select more than 25 topics
Topics must start with a letter or number, can include dashes ('-') and can be up to 35 characters long.
781 lines
19 KiB
HTML
781 lines
19 KiB
HTML
![]()
10 years ago
|
<!DOCTYPE html>
|
||
|
<html>
|
||
|
<head>
|
||
|
<meta http-equiv="Content-Type" content="text/html; charset=UTF-8" lang="en">
|
||
|
<title>Dispute Resulution Policy</title>
|
||
|
<style type="text/css">
|
||
|
<!--
|
||
|
.comment {
|
||
|
color : steelblue;
|
||
|
}
|
||
|
-->
|
||
|
</style>
|
||
|
</head>
|
||
|
<body>
|
||
|
|
||
|
|
||
|
|
||
|
<div class="comment">
|
||
|
<table width="100%">
|
||
|
|
||
|
<tbody>
|
||
|
<tr>
|
||
|
<td rowspan="2">
|
||
|
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>
|
||
|
<br>
|
||
|
Created: m20070919.3
|
||
|
<br>
|
||
|
Changed: p20110108, p20121213, p20130116
|
||
|
|
||
|
<br>
|
||
|
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>
|
||
|
</td>
|
||
|
<td align="right" valign="top">
|
||
|
<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">
|
||
|
</a>
|
||
|
</td>
|
||
|
</tr>
|
||
|
</tbody>
|
||
|
</table>
|
||
|
</div>
|
||
|
|
||
|
|
||
|
<h1> Dispute Resolution 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>
|
||
|
|
||
|
|
||
|
</body>
|
||
|
</html>
|