Name: DRP COD7 Status: POLICY p20140731 Created: m20070919.3 Changed: p20110108, p20121213, p20130116 Editor: Teus Hagen Licence: CC-by-sa+DRP

Dispute Resolution Policy

0. Introduction

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.

0.1. Nature of Disputes

Disputes include:

• Requests for non-routine support actions. CAcert support team has no authority to act outside the normal support facilities made available to Members;
• Classical disputes where a Member or another assert claims and demand remedies;
• Requests by external organisations, including legal processes from foreign courts;
• Events initiated for training purposes.

1. Filing

1.1. Filing Party

Anyone may file a dispute. In filing, they become Claimants.

1.2. Channel for Filing

Disputes are filed by being sent to the normal support channel of CAcert, and a fee may be payable.

Such fees as are imposed on filing will be specified on the dispute resolution page of the website.

1.3. Case Manager

The Case Manager (CM) takes control of the filing.

1. CM makes an initial determination as to whether this filing is a dispute for resolution, or it is a request for routine support.
2. CM logs the case and establishes such documentation and communications support as is customary.
3. If any party acts immediately on the filing (such as an urgent security action), the CM names these parties to the case.
4. CM selects the Arbitrator.

The personnel within the CAcert support team are Case Managers, by default, or as directed by the Dispute Resolution Officer (DRO).

1.4. Contents

The filing must specify:

• The filing party(s), being the Claimant(s).
• The party(s) to whom the complaint is addressed to, being the Respondent(s). 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.
• The Complaint. For example, a trademark has been infringed, privacy has been breached, or a Member has defrauded using a certificate.
• The action(s) requested by the filing party (technically, called the relief). For example, to delete an account, to revoke a certificate, or to stop a trademark infringement.

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.

1.5. The Arbitrator

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."

Arbitrators are experienced Assurers. They should be independent and impartial, including of CAcert Inc. itself where it becomes a party.

2. The Arbitration

2.1. Authority

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.

2.2. Preliminaries

The Arbitrator conducts some preliminaries:

• The Arbitrator reviews the available documentation and affirms the rules of dispute resolution. Jurisdiction is established, see below.
• 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.
• 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.
• 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.
• Participating Members may not resign from the Community until the completion of the case.
• 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.
• 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.
• The Arbitrator may appoint experienced Assurers to assist and represent parties, especially for NRPs. The Case Manager must not provide such assistance.
• The Arbitrator is bound to maintain the balance of legal fairness.
• The Arbitrator may make any preliminary orders, including protection orders and orders referring to emergency actions already taken.
• The Arbitrator may request any written pleadings, counterclaims, and/or statements of defence.

2.3. Jurisdiction

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:

• That all Parties agree to binding Arbitration in CAcert's forum of dispute resolution;
• for all disputes relating to activities within CAcert, issued certificates, roles and actions, etc;
• as defined by these rules, including the selection of a single Arbitrator;
• under the Law of NSW, Australia; and
• the Parties keep email accounts in good working order.

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:

• 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;
• criminal actions or actions likely to result in criminal proceedings, e.g., fraud;
• Contracts between Members that were formed without a clause to seek arbitration in the forum;
• Areas where laws fall outside the Arbitration Act, such as privacy;
• Legal process (subpoenas, etc) delivered by an external court of "competent jurisdiction."

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.

2.4. Basis in Law

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 private law or alternative dispute resolution.

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.

2.5. External Courts

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 Claimant. 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).

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.

2.6. Process

The Arbitrator follows the procedure:

1. 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.
2. 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.
3. Makes a considered Ruling.

3. The Ruling

3.1. The Contents

The Arbitrator records:

1. The Identification of the Parties,
2. The Facts,
3. The logic of the rules and law,
4. The directions and actions to be taken by each party (the ruling).
5. The date and place that the ruling is rendered.

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 Members.

Proceedings are ordinarily private. The Ruling is ordinarily published, within the bounds of the Privacy Policy. The Ruling is written in English.

Only under exceptional circumstances can the 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 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 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.

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. Review for Appeal

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.

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.

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 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.

The above provisions may only be overridden by appeal process (by means of a new dispute causing referral to the Board).

3.6. Remedies

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.

• "community service" typically including
  • attend and assure people at trade shows / open source gatherings,
  • writing documentation
  • serve in a role - support, dispute arbitration
  or others as decided.
• Fined by loss of assurance points, which may result in losing Assurer or Assured status.
• Retraining in role.
• Revoking of any certificates.
• Monetary fine up to the liability cap established for each party as described in the CAcert Community Agreement.
• Exclusion from community.
• Reporting to applicable authorities.
• Changes to policies and procedures.

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.

4. Appendix

4.1. The Advantages of this Forum

The advantage of this process for Members is:

• CAcert and Members operate across many jurisdictions. Arbitration allows us to select a single set of rules across all jurisdictions.
• 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.
• 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.
• By volunteering to resolve things "in-house" the costs are reduced.
• 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.
• CAcert Assurers can develop the understanding and the rules for sorting out own problems far better than courts or other external agencies.

4.2. The Disadvantages of this Forum

Some disadvantages exist.

• 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.
• 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.
• 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.

4.3. Process and Flow

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.

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.

Note also that many elements of legal proceedings are deliberately left out of the rules.