-This is the Dispute Resolution Policy for CAcert.
+This is the Dispute Resolution Policy
+for CAcert
+for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
Disputes arising out of
-operations by CAcert and interactions between
-users may be addressed through this policy.
+operations by CAcert
+Inc
+and interactions between
+
+Members
+
+may be addressed through this policy.
This document also presents the rules for
resolution of disputes.
-
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
+
+ Members;
+
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.
-
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 (DRO).
-
The action(s) requested by the filing party
(technically, called the relief).
@@ -157,11 +195,12 @@ may refile with the additional information,
attaching the original messages.
- 1.5 The Arbitrator
+ 1.5 The Arbitrator
The Case Manager selects the Arbitrator according
-to the mechanism managed by the Dispute Resolution Officer
+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.
@@ -174,24 +213,31 @@ closed with status "declined."
-Arbitrators are experienced Assurers of CAcert.
+Arbitrators are experienced Assurers of CAcert.
They should be independent and impartial, including
-of CAcert itself where it becomes a party.
+of CAcert Inc. itself where it becomes a party.
- 2. The Arbitration
+ 2. The Arbitration
- 2.1 Authority
+ 2.1 Authority
-The Board of CAcert and the Users vest in Arbitrators
+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 and the Users.
+which are binding on CAcert Inc. and the
+
+Members.
+
- 2.2 Preliminaries
+ 2.2 Preliminaries
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 Inc. and other parties
+ remain under the governing law.
-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.
+
+CAcert Community Agreement.
+
The agreement must establish:
@@ -292,7 +365,7 @@ to be considered carefully:
-
- 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;
-
- Contracts between Users that were formed without
+ Contracts between
+
+ Members
+
+ that were formed without
a clause to seek arbitration in the forum;
-
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.
-
2.4 Basis in Law
+ 2.4 Basis in Law
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
+
+ Members
+
+users of CAcert,
+you agree to resolve
all disputes before CAcert's forum.
This is sometimes called private law
or alternative dispute resolution.
@@ -338,13 +420,16 @@ or alternative dispute resolution.
As a matter of public policy, courts will generally
refer any case back to Arbitration.
-Users should understand that they will have
+
+ Members
+
+should understand that they will have
strictly limited rights to ask the courts to
seek to have a case heard or to override a Ruling.
- 2.5 External Courts
+ 2.5 External Courts
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
+
+ Members,
+
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 Inc. counsel.
The Arbitrator's jurisidiction is ordinarily that of
dealing with the order, and
not that which the external court has claimed to.
- 2.6 Process
+ 2.6 Process
The Arbitrator follows the procedure:
@@ -382,8 +470,11 @@ The Arbitrator follows the procedure:
-
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 Inc. or
+
+ Members
+
+ under jurisdiction to provide support or information.
The Arbitrator may use email, phone or face-to-face
meetings as proceedings.
-
@@ -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
+
+ Members
+
+ , and the community as a whole.
+ The Arbitrator may
+
+ seek
+
+ any assistance.
-
Makes a considered Ruling.
- 3. The Ruling
+ 3. The Ruling
- 3.1 The Contents
+ 3.1 The Contents
The Arbitrator records:
@@ -420,11 +519,11 @@ The Arbitrator records:
- 3.2 Process
+ 3.2 Process
Once the Ruling is delivered, the case is closed.
The Case Manager is responsible for recording the
-Ruling, publishing it, and advising users.
+Ruling, publishing it, and advising Members.
@@ -440,53 +539,94 @@ Arbitrator declare the Ruling private under seal.
Such a declaration must be reviewed in its entirety
by the Board,
and the Board must confirm or deny that declaration.
-If it confirms, the 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
+
+ Members
+
+in a timely manner
(within days).
- 3.3 Binding and Final
-
-
-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
+
3.3 Binding and Final
+
+
+The Ruling is
+
+ordinarily final and binding
+binding and final
+on CAcert Inc. and all
+
+ Members
+
+.
+Ordinarily, all
+
+ Members
+
+ agree to be bound by this dispute
+resolution policy.
+
+ Members
+
+must declare in the Preliminaries
any default in agreement or binding.
-If a person who is not a User is a party to the dispute,
+If a person who is not a
+
+ Member
+
+is a party to the dispute,
then the Ruling is not binding and final on that person,
but the Ruling must be presented in filing any dispute
in another forum such as the person's local courts.
- 3.4 Re-opening the Case or Appeal
+ 3.4 Review for Appeal (DRAFT p20110108) Re-opening the Case or Appeal
-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 event case of clear injustices, egregious behaviour or
+unconscionable Rulings,
+
+a review may be requested by filing a dispute (DRAFT p20110108).
+
+
+parties may seek to re-open the
+case by filing a dispute.
+
+The new Arbitrator reviews the new dispute,
re-examines and reviews the entire case, then rules on
whether the case may be re-opened or not.
+
+If the Review Arbitrator rules the case be re-opened,
+then the Review Arbitrator refers the case to an Appeal Panel of 3.
+The Appeal Panel is led by a Senior Arbitrator,
+and is formed according to procedures established
+by the DRO from time to time.
+The Appeal Panel hears the case and delivers a final and binding Ruling.
+ (DRAFT p20110108)
+
+
If the new Arbitrator rules the case be re-opened,
then it is referred to the Board of CAcert Inc.
The Board hears the case and delivers a final
and binding Ruling.
+
- 3.5 Liability
+ 3.5 Liability
All liability of the Arbitrator for any act in
connection with deciding a dispute is excluded
by all parties, provided such act does not constitute
an intentional breach of duty.
-All liability of the Arbitrators, CAcert, its officers and its
+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
@@ -495,15 +635,18 @@ constitute an intentional or grossly negligent breach of duty.
The above provisions may only be overridden by
-appeal process (by means of a new dispute causing
-referral to the Board).
+appeal process
+ (by means of a new dispute causing referral to the Board).
+
- 3.6 Remedies
+ 3.6 Remedies
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
+CAcert
+the Community,
but there are some external remedies at his disposal.
He may rule and instruct any of the parties on these issues.
@@ -515,7 +658,7 @@ He may rule and instruct any of the parties on these issues.
-
writing documentation
-
- serve in role - support, dispute arbitration
+ serve in a role - support, dispute arbitration
or others as decided.
@@ -531,7 +674,10 @@ He may rule and instruct any of the parties on these issues.
+ Status: POLICY m20070919.3
+ DRAFT p20110108 p20121213
+ Editor: Teus Hagen +
+ Licence: CC-by-sa+DRP
+