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"Replace DisputeResolutionPolicy.html with rev p20121213"
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www/policy/DisputeResolutionPolicy.php
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@ -1,60 +1,95 @@
<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd">
<html>
<?='<?xml version="1.0" encoding="utf-8"?>'?>
<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.1//EN"
"http://www.w3.org/TR/xhtml11/DTD/xhtml11.dtd">
<html xmlns="http://www.w3.org/1999/xhtml">
<head>
<title>Dispute Resulution Policy</title>
<meta http-equiv="CONTENT-TYPE" content="text/html; charset=utf-8" />
<title>Dispute Resulution Policy</title>
<style type="text/css">
<!--
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</style>
</head>
<body>
<div class="comment">
<table width="100%">
<tr>
<td> DRP </td>
<td> </td>
<td width="20%"> Teus Hagen </td>
</tr>
<tr>
<td> POLICY&nbsp;<a href="http://wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a> </td>
<td> </td>
<td>
$Date: 2008/01/18 22:56:31 $
<!--
to get this to work, we have to do this:
svn propset svn:keywords "Date" PolicyOnPolicy.html
except it does not work through the website.
-->
Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br />
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <span class="draftadd">DRAFT p20110108 p20121213</span> <br />
Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen
</a><br />
Licence: <a style="color: steelblue" href="//wiki.cacert.org/Policy#Licence" title="this document is Copyright &copy; CAcert Inc., licensed openly under CC-by-sa with all disputes resolved under DRP. More at wiki.cacert.org/Policy" > CC-by-sa+DRP </a><br /></td>
<td valign="top" align="right">
<a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="/images/cacert-policy.png" alt="TTP-Assist Status - POLICY" height="31" width="88" style="border-style: none;" /></a><br />
<a href="//www.cacert.org/policy/PolicyOnPolicy.php"><img src="/images/cacert-draft.png" alt="TTP-Assist Status - DRAFT" height="31" width="88" style="border-style: none;" /></a>
</td>
</tr>
<tr>
<td> COD7 </td>
<td> </td>
<td> <!-- contributors --> </td>
</tr>
<tr> <!-- title only -->
<td> </td>
<td > <b>Dispute&nbsp;Resolution&nbsp;Policy</b> </td>
<td> </td>
</tr>
</table>
</div>
<h2> <a name="0"> 0. </a> Introduction</h2>
<h1> Dispute&nbsp;Resolution&nbsp;Policy </h1>
<h2 id="s0"> 0. Introduction</h2>
<p>
This is the Dispute Resolution Policy for CAcert.
This is the Dispute Resolution Policy
<span class="draftdrop">for CAcert</span>
<span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>.
Disputes arising out of
operations by CAcert and interactions between
users may be addressed through this policy.
operations by CAcert
<span class="draftadd">Inc</span>
and interactions between
<span class="draftadd">
Members
</span>
may be addressed through this policy.
This document also presents the rules for
resolution of disputes.
</p>
<h3> <a name="0.1"> 0.1 </a> Nature of Disputes </h3>
<h3 id="s0.1"> 0.1 Nature of Disputes </h3>
<p>
Disputes include:
@ -64,9 +99,12 @@ Disputes include:
Requests for non-routine support actions.
CAcert support team has no authority to
act outside the normal support facilities made
available to Users;
available to
<span class="draftadd">
Members;
</span>
</li><li>
Classical disputes where a User or another
Classical disputes where a <span class="draftadd">Member</span> or another
assert claims and demand remedies;
</li><li>
Requests by external organisations, including
@ -75,15 +113,15 @@ Disputes include:
Events initiated for training purposes.
</li></ul>
<h2> <a name="1"> 1. </a> Filing</h2>
<h2 id="s1"> 1. Filing</h2>
<h3> <a name="1.1"> 1.1 </a> Filing Party</h3>
<h3 id="s1.1"> 1.1 Filing Party</h3>
<p>
Anyone may file a dispute.
In filing, they become <i>Claimants</i>.
</p>
<h3> <a name="1.2">1.2 </a> Channel for Filing</h3>
<h3 id="s1.2"> 1.2 Channel for Filing</h3>
<p>
Disputes are filed by being sent to the normal
@ -96,7 +134,7 @@ Such fees as are imposed on filing will be specified
on the dispute resolution page of the website.
</p>
<h3> <a name="1.3">1.3 </a> Case Manager</h3>
<h3 id="s1.3"> 1.3 Case Manager</h3>
<p>
The Case Manager (CM) takes control of the filing.
</p>
@ -120,10 +158,10 @@ The Case Manager (CM) takes control of the filing.
<p>
The personnel within the CAcert support team
are Case Managers, by default, or as directed
by the Dispute Resolution Officer.
by the Dispute Resolution Officer <span class="change2">(DRO)</span>.
</p>
<h3> <a name="1.4">1.4 </a> Contents</h3>
<h3 id="s1.4"> 1.4 Contents</h3>
<p>
The filing must specify:
</p>
@ -135,13 +173,13 @@ The filing must specify:
being the <i>Respondent(s)</i>.
This will be CAcert in the
case of requests for support actions.
It may be a User (possibly unidentified) in the
case where one User has given rise to a complaint against another.
It may be a <span class="draftadd">Member</span> (possibly unidentified) in the
case where one <span class="draftadd">Member</span> has given rise to a complaint against another.
</li><li>
The <i>Complaint</i>.
For example, a trademark has been infringed,
privacy has been breached,
or a user has defrauded using a certificate.
or a <span class="draftadd">Member</span> has defrauded using a certificate.
</li><li>
The action(s) requested by the filing party
(technically, called the <i>relief</i>).
@ -157,11 +195,12 @@ may refile with the additional information,
attaching the original messages.
</p>
<h3> <a name="1.5">1.5 </a> The Arbitrator</h3>
<h3 id="s1.5"> 1.5 The Arbitrator</h3>
<p>
The Case Manager selects the Arbitrator according
to the mechanism managed by the Dispute Resolution Officer
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.
@ -174,24 +213,31 @@ closed with status "declined."
</p>
<p>
Arbitrators are experienced Assurers of CAcert.
Arbitrators are experienced Assurers <span class="draftdrop">of CAcert</span>.
They should be independent and impartial, including
of CAcert itself where it becomes a party.
of CAcert <span class="draftadd">Inc.</span> itself where it becomes a party.
</p>
<h2> <a name="2"> 2. </a> The Arbitration</h2>
<h2 id="s2"> 2. The Arbitration</h2>
<h3> <a name="2.1">2.1 </a> Authority</h3>
<h3 id="s2.1"> 2.1 Authority</h3>
<p>
The Board of CAcert and the Users vest in Arbitrators
The Board of CAcert <span class="draftadd">Inc.</span> and the
<span class="draftadd">
Members of the Community
</span>
vest in Arbitrators
full authority to hear disputes and deliver rulings
which are binding on CAcert and the Users.
which are binding on CAcert <span class="draftadd">Inc.</span> and the
<span class="draftadd">
Members.
</span>
</p>
<h3> <a name="2.2">2.2 </a> Preliminaries</h3>
<h3 id="s2.2"> 2.2 Preliminaries</h3>
<p>
The Arbitrator conducts some preliminaries:
@ -208,29 +254,54 @@ The Arbitrator conducts some preliminaries:
agree, are under such jurisdiction, and it is deemed
more appropriate.
However, this is strictly limited to those parties,
and especially, CAcert and other parties
remains under the governing law.
and especially, CAcert <span class="draftadd">Inc.</span> and other parties
remain under the governing law.
</li><li>
The Arbitrator reviews the Respondents and Claimants
with a view to dismissal or joining of additional parties.
E.g., support personel may be joined if emergency action was
E.g., support personnel may be joined if emergency action was
taken.
</li><li>
Any parties that are not Users and are not bound
by the CPS are given the opportunity to enter into
CAcert and be bound by the CPS and these rules of arbitration.
If these Non-Related Persons (NRPs) remain outside,
Any parties that are not
<span class="draftadd">
Members
</span>
and are not bound by the
<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
are given the opportunity to enter into
CAcert and be bound by the
<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
and these rules of arbitration.
If
<!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> -->
these Non-Related Persons (NRPs)
remain outside,
their rights and remedies under CAcert's policies
and forum are strictly limited to that specified in the
Non-Related Persons -- Disclaimer and Licence.
NRPs may proceed with Arbitration subject to preliminary orders
and forum are strictly limited to
<span class="strike">that</span> <span class="change2">those</span>
specified in the
<span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>.
NRPs
may proceed with Arbitration subject to preliminary orders
of the Arbitrator.
</li><li>
Participating Users may not resign until the completion of the case.
Participating
<span class="draftadd">
Members
</span>
may not resign
<span class="change2">
from the Community
</span>
until the completion of the case.
</li><li>
The Arbitrator confirms that all parties accept
the forum of dispute resolution.
This is especially important where a User might be
This is especially important where a
<span class="draftadd">
Member
</span>
might be
in a country with no Arbitration Act in law, or
where there is reason to believe that a party might
go to an external court.
@ -240,12 +311,12 @@ The Arbitrator conducts some preliminaries:
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.
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 to provide such assistance.
The Case Manager must not provide such assistance.
</li><li>
The Arbitrator is bound to maintain the balance
of legal fairness.
@ -255,16 +326,18 @@ The Arbitrator conducts some preliminaries:
to emergency actions already taken.
</li><li>
The Arbitrator may request any written pleadings,
counterclaim, and/or statements of defence.
counterclaims, and/or statements of defence.
</li></ul>
<h3> <a name="2.3">2.3 </a> Jurisdiction </h3>
<h3 id="s2.3"> 2.3 Jurisdiction </h3>
<p>
Jurisidiction - the right or power to hear and rule on
Jurisdiction - the right or power to hear and rule on
disputes - is initially established by clauses in the
User agreements for all CAcert Users.
<span class="draftadd">
CAcert Community Agreement.
</span>
The agreement must establish:
</p>
@ -292,7 +365,7 @@ to be considered carefully:
</p>
<ul><li>
Where NRPs, being not members of CAcert and not
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;
@ -301,7 +374,11 @@ to be considered carefully:
proceedings,
e.g., fraud;
</li><li>
Contracts between Users that were formed without
Contracts between
<span class="draftadd">
Members
</span>
that were formed without
a clause to seek arbitration in the forum;
</li><li>
Areas where laws fall outside the Arbitration Act,
@ -321,7 +398,7 @@ another forum, the Arbitrator should seek the agreement
of the NRP to file the ruling as part of the new case.
</p>
<h3> <a name="2.4">2.4 </a> Basis in Law </h3>
<h3 id="s2.4"> 2.4 Basis in Law </h3>
<p>
Each country generally has an Arbitration Act
@ -329,7 +406,12 @@ that elevates Arbitration as a strong dispute
resolution forum.
The Act generally defers to Arbitration
if the parties have so agreed.
That is, as Users of CAcert, you agree to resolve
That is, as
<span class="draftadd">
Members
</span>
<span class="draftdrop">users of CAcert</span>,
you agree to resolve
all disputes before CAcert's forum.
This is sometimes called <i>private law</i>
or <i>alternative dispute resolution</i>.
@ -338,13 +420,16 @@ or <i>alternative dispute resolution</i>.
<p>
As a matter of public policy, courts will generally
refer any case back to Arbitration.
Users should understand that they will have
<span class="draftadd">
Members
</span>
should understand that they will have
strictly limited rights to ask the courts to
seek to have a case heard or to override a Ruling.
</p>
<h3> <a name="2.5">2.5 </a> External Courts </h3>
<h3 id="s2.5"> 2.5 External Courts </h3>
<p>
When an external court claims and asserts its jurisdiction,
@ -362,17 +447,20 @@ seek to have a case heard or to override a Ruling.
court, and rules.
The Arbitrator may rule to reject the order,
for jurisdiction or other reasons.
By way of example, if all Parties are registered Users,
By way of example, if all Parties are
<span class="draftadd">
Members,
</span>
then jurisdiction more normally falls within the forum.
If the Arbitrator rules to reject,
he should do so only after consulting with CAcert counsel.
he should do so only after consulting with CAcert <span class="draftadd">Inc.</span> counsel.
The Arbitrator's jurisidiction is ordinarily that of
dealing with the order, and
not that which the external court has claimed to.
</p>
<h3> <a name="2.6">2.6 </a> Process</h3>
<h3 id="s2.6"> 2.6 Process</h3>
<p>
The Arbitrator follows the procedure:
@ -382,8 +470,11 @@ The Arbitrator follows the procedure:
<ol><li>
Establish the facts.
The Arbitrator collects the evidence from the parties.
The Arbitrator may order CAcert or Users under
jurisdiction to provide support or information.
The Arbitrator may order CAcert <span class="draftadd">Inc.</span> or
<span class="draftadd">
Members
</span>
under jurisdiction to provide support or information.
The Arbitrator may use email, phone or face-to-face
meetings as proceedings.
</li><li>
@ -392,15 +483,23 @@ The Arbitrator follows the procedure:
The Arbitrator may request that the parties
submit their views.
The Arbitrator also works to the mission of CAcert,
the benefit of all Users, and the community as a whole.
The Arbitrator may any assistance.
the benefit of all
<span class="draftadd">
Members
</span>
, and the community as a whole.
The Arbitrator may
<span class="draftadd">
seek
</span>
any assistance.
</li><li>
Makes a considered Ruling.
</li></ol>
<h2> <a name="3"> 3. </a> The Ruling</h2>
<h2 id="s3"> 3. The Ruling</h2>
<h3> <a name="3.1">3.1 </a> The Contents </h3>
<h3 id="s3.1"> 3.1 The Contents </h3>
<p>
The Arbitrator records:
@ -420,11 +519,11 @@ The Arbitrator records:
</li></ol>
<h3> <a name="3.2">3.2 </a> Process </h3>
<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 users.
Ruling, publishing it, and advising <span class="draftadd">Members</span>.
</p>
<p>
@ -440,53 +539,94 @@ 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 existance of any Rulings under seal
must be published to the Users in a timely manner
If it confirms, the existence of any Rulings under seal
must be published to the
<span class="draftadd">
Members
</span>
in a timely manner
(within days).
</p>
<h3> <a name="3.3">3.3 </a> Binding and Final </h3>
<h3 id="s3.3"> 3.3 Binding and Final </h3>
<p>
The Ruling is binding and final on CAcert and all Users.
Ordinarily, all Users agree to be bound by this dispute
resolution policy. Users must declare in the Preliminaries
The Ruling is
<!-- (DRAFT p20110108) -->
<span class="draftadd">ordinarily final and binding </span>
<span class="draftdrop">binding and final</span>
on CAcert <span class="draftadd">Inc.</span> and all
<span class="draftadd">
Members
</span>
.
Ordinarily, all
<span class="draftadd">
Members
</span>
agree to be bound by this dispute
resolution policy.
<span class="draftadd">
Members
</span>
must declare in the Preliminaries
any default in agreement or binding.
</p>
<p>
If a person who is not a User is a party to the dispute,
If a person who is not a
<span class="draftadd">
Member
</span>
is a party to the dispute,
then the Ruling is not binding and final on that person,
but the Ruling must be presented in filing any dispute
in another forum such as the person's local courts.
</p>
<h3> <a name="3.4">3.4 </a> Re-opening the Case or Appeal </h3>
<h3 id="s3.4"> 3.4 <span class="draftadd">Review for Appeal (DRAFT p20110108)</span> &nbsp;&nbsp;&nbsp;&nbsp; <span class="draftdrop">Re-opening the Case or Appeal</span> </h3>
<p>
In the case of clear injustices, egregious behaviour or
unconscionable Rulings, parties may seek to re-open the
case by filing a dispute. The new Arbitrator
reviews the new dispute,
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> <a name="3.5">3.5 </a> Liability </h3>
<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, its officers and its
All liability of the Arbitrators, CAcert <span class="draftadd">Inc.</span>, its officers and its
employees (including Case Manager)
for any other act or omission in connection with
arbitration proceedings is excluded, provided such acts do not
@ -495,15 +635,18 @@ constitute an intentional or grossly negligent breach of duty.
<p>
The above provisions may only be overridden by
appeal process (by means of a new dispute causing
referral to the Board).
appeal process
(by means of a new dispute causing referral to the Board).
</p>
<h3> <a name="3.6">3.6 </a> Remedies </h3>
<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 CAcert,
that is ones that are within the general domain of
<span class="draftdrop">CAcert</span>
<span class="draftadd">the Community</span>,
but there are some external remedies at his disposal.
He may rule and instruct any of the parties on these issues.
</p>
@ -515,7 +658,7 @@ He may rule and instruct any of the parties on these issues.
</li><li>
writing documentation
</li><li>
serve in role - support, dispute arbitration
serve in <span class="change2">a</span> role - support, dispute arbitration
</li></ul>
or others as decided.
@ -531,7 +674,10 @@ He may rule and instruct any of the parties on these issues.
</li><li>
Monetary fine up to the liability cap established for
each party as described in the Registered User Agreement.
each party as described in the
<span class="draftadd">
CAcert Community Agreement.
</span>
</li><li>
Exclusion from community.
@ -548,20 +694,25 @@ He may rule and instruct any of the parties on these issues.
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 appeals process,
confirmed by the Board by way of appeal process,
in order to establish precedent.
</p>
<h2> <a name="4"> 4. </a> Appendix</h2>
<h2 id="s4"> 4. Appendix</h2>
<h3> <a name="4.1">4.1 </a> The Advantages of this Forum </h3>
<h3 id="s4.1"> 4.1 The Advantages of this Forum </h3>
<p>
The advantage of this process for Users is:
The advantage of this process for
<span class="draftadd">
Members
</span>
is:
</p>
<ul><li>
CAcert and Users operate across many jurisdictions.
CAcert and <span class="draftadd">Members</span> operate across many jurisdictions.
Arbitration allows us to select a single set of
rules across all jurisdictions.
</li><li>
@ -572,7 +723,7 @@ The advantage of this process for Users is:
authority to act.
Good governance is thus maintained.
</li><li>
This forum allows CAcert Users to look after themselves
This forum allows CAcert <span class="draftadd">Members</span> to look after themselves
in a community, without exposing each other to potentially
disastrous results in strange courts from foreign lands.
</li><li>
@ -588,18 +739,21 @@ The advantage of this process for Users is:
other external agencies.
</li></ul>
<h3> <a name="4.2">4.2 </a> The Disadvantages of this Forum </h3>
<h3 id="s4.2"> 4.2 The Disadvantages of this Forum </h3>
<p>
Some disadvantages exist.
</p>
<ul><li>
Users may have their rights trampled over.
<span class="draftadd">Members</span> may have their rights trampled over.
In such a case, the community should strive to
re-open the case and refer it to the board.
re-open the case
and refer it to the board.
</li><li>
Users may feel overwhelmed by the formality
<span class="draftadd">Members</span> may feel overwhelmed by the formality
of the process.
It is kept formal so as to establish good and proper
authority to act; otherwise, support and other
@ -613,7 +767,7 @@ Some disadvantages exist.
they should also depart the community.
</li></ul>
<h3> <a name="4.3">4.3 </a> Process and Flow </h3>
<h3 id="s4.3"> 4.3 Process and Flow </h3>
<p>
To the extent reasonable, the Arbitrator conducts
@ -635,5 +789,6 @@ Note also that many elements of legal proceedings are
deliberately left out of the rules.
</p>
</body>
</html>