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781 lines
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<title>Dispute Resulution Policy</title>
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<table width="100%">
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Name: DRP <a style="color: steelblue" href="https://svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a>
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<br>
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Status: POLICY <a href="https://wiki.cacert.org/PolicyDecisions#p20140731">p20140731</a>
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<br>
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Created: m20070919.3
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<br>
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Changed: p20110108, p20121213, p20130116
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<br>
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Editor: <a style="color: steelblue" href="https://wiki.cacert.org/TeusHagen">Teus Hagen
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</a>
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<br>
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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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<td align="right" valign="top">
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<a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
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<a href="https://www.cacert.org/policy/PolicyOnPolicy.php">
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<img src="images/cacert-policy.png" alt="DRP Status - POLICY" style="border-style: none;" height="31" width="88">
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</a>
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</td>
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</tr>
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</tbody>
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</table>
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</div>
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<h1> Dispute Resolution Policy </h1>
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<h2 id="g0.1">0. Introduction</h2>
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<p>
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This is the Dispute Resolution Policy
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for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA).
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Disputes arising out of
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operations by CAcert
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Inc
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and interactions between
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Members
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may be addressed through this policy.
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This document also presents the rules for
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resolution of disputes.
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</p>
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<h3 id="g0.1.1">0.1. Nature of Disputes </h3>
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<p>
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Disputes include:
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</p>
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<ul>
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<li>
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Requests for non-routine support actions.
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CAcert support team has no authority to
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act outside the normal support facilities made
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available to
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Members;
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</li>
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<li>
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Classical disputes where a Member or another
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assert claims and demand remedies;
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</li>
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<li>
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Requests by external organisations, including
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legal processes from foreign courts;
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</li>
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<li>
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Events initiated for training purposes.
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</li>
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</ul>
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<h2 id="g0.2">1. Filing</h2>
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<h3 id="g0.2.1">1.1. Filing Party</h3>
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<p>
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Anyone may file a dispute.
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In filing, they become <i>Claimants</i>.
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</p>
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<h3 id="g0.2.2">1.2. Channel for Filing</h3>
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<p>
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Disputes are filed by being sent to the normal
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support channel of CAcert,
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and a fee may be payable.
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</p>
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<p>
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Such fees as are imposed on filing will be specified
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on the dispute resolution page of the website.
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</p>
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<h3 id="g0.2.3">1.3. Case Manager</h3>
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<p>
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The Case Manager (CM) takes control of the filing.
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</p>
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<ol>
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<li>
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CM makes an initial determination as
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to whether this filing is a dispute
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for resolution, or it is a request
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for routine support.
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</li>
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<li>
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CM logs the case and establishes such
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documentation and communications support as is customary.
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</li>
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<li>
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If any party acts immediately on the filing
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(such as an urgent security action),
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the CM names these parties to the case.
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</li>
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<li>
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CM selects the Arbitrator.
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</li>
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</ol>
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<p>
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The personnel within the CAcert support team
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are Case Managers, by default, or as directed
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by the Dispute Resolution Officer (DRO).
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</p>
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<h3 id="g0.2.4">1.4. Contents</h3>
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<p>
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The filing must specify:
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</p>
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<ul>
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<li>
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The filing party(s), being the <i>Claimant(s)</i>.
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</li>
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<li>
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The party(s) to whom the complaint is addressed to,
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being the <i>Respondent(s)</i>.
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This will be CAcert in the
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case of requests for support actions.
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It may be a Member (possibly unidentified) in the
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case where one Member has given rise to a complaint against another.
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</li>
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<li>
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The <i>Complaint</i>.
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For example, a trademark has been infringed,
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privacy has been breached,
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or a Member has defrauded using a certificate.
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</li>
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<li>
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The action(s) requested by the filing party
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(technically, called the <i>relief</i>).
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For example, to delete an account,
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to revoke a certificate, or to stop a
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trademark infringement.
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</li>
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</ul>
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<p>
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If the filing is inadequate for lack of information
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or for format, the Case Manager
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may refile with the additional information,
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attaching the original messages.
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</p>
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<h3 id="g0.2.5">1.5. The Arbitrator</h3>
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<p>
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The Case Manager selects the Arbitrator according
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to the mechanism managed by the
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DRO
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and approved from time to time.
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This mechanism is to maintain a list of Arbitrators available for
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dispute resolution.
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Each selected Arbitrator has the right to decline the dispute,
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and should decline a dispute with which there exists a conflict
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of interest.
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The reason for declining should be stated.
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If no Arbitrator accepts the dispute, the case is
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closed with status "declined."
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</p>
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<p>
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Arbitrators are experienced Assurers.
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They should be independent and impartial, including
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of CAcert Inc. itself where it becomes a party.
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</p>
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<h2 id="g0.3">2. The Arbitration</h2>
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<h3 id="g0.3.1">2.1. Authority</h3>
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<p>
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The Board of CAcert Inc. and the
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Members of the Community
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vest in Arbitrators
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full authority to hear disputes and deliver rulings
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which are binding on CAcert Inc. and the
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Members.
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</p>
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<h3 id="g0.3.2">2.2. Preliminaries</h3>
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<p>
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The Arbitrator conducts some preliminaries:
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</p>
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<ul>
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<li>
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The Arbitrator reviews the available documentation
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and affirms the rules of dispute resolution.
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Jurisdiction is established, see below.
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</li>
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<li>
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The Arbitrator affirms the governing law (NSW, Australia).
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The Arbitrator may select local law and local
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procedures where Claimants and all Respondents
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agree, are under such jurisdiction, and it is deemed
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more appropriate.
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However, this is strictly limited to those parties,
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and especially, CAcert Inc. and other parties
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remain under the governing law.
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</li>
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<li>
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The Arbitrator reviews the Respondents and Claimants
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with a view to dismissal or joining of additional parties.
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E.g., support personnel may be joined if emergency action was
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taken.
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</li>
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<li>
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Any parties that are not
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Members
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and are not bound by the
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CCA
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are given the opportunity to enter into
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CAcert and be bound by the
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CCA
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and these rules of arbitration.
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If
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these Non-Related Persons (NRPs)
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remain outside,
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their rights and remedies under CAcert's policies
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and forum are strictly limited to
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those
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specified in the
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Root Distribution License.
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NRPs
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may proceed with Arbitration subject to preliminary orders
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of the Arbitrator.
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</li>
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<li>
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Participating
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Members
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may not resign
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from the Community
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until the completion of the case.
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</li>
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<li>
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The Arbitrator confirms that all parties accept
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the forum of dispute resolution.
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This is especially important where a
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Member
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might be
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in a country with no Arbitration Act in law, or
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where there is reason to believe that a party might
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go to an external court.
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</li>
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<li>
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The Arbitrator confirms that parties are representing
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themselves. Parties are entitled to be legally
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represented, but are not encouraged to do so,
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bearing in mind the volunteer nature of the
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organisation and the size of the dispute.
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If they do so,
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they must declare such, including any changes.
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</li>
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<li>
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The Arbitrator may appoint experienced Assurers
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to assist and represent parties, especially for NRPs.
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The Case Manager must not provide such assistance.
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</li>
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<li>
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The Arbitrator is bound to maintain the balance
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of legal fairness.
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</li>
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<li>
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The Arbitrator may make any preliminary orders,
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including protection orders and orders referring
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to emergency actions already taken.
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</li>
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<li>
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The Arbitrator may request any written pleadings,
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counterclaims, and/or statements of defence.
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</li>
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</ul>
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<h3 id="g0.3.3">2.3. Jurisdiction </h3>
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<p>
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Jurisdiction - the right or power to hear and rule on
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disputes - is initially established by clauses in the
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CAcert Community Agreement.
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The agreement must establish:
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</p>
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<ul>
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<li>
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That all Parties agree to binding Arbitration
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in CAcert's forum of dispute resolution;
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</li>
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<li>
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for all disputes relating to activities within
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CAcert, issued certificates, roles and actions, etc;
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</li>
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<li>
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as defined by these rules, including the selection
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of a single Arbitrator;
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</li>
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<li>
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under the Law of NSW, Australia; and
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</li>
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<li>
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the Parties keep email accounts in good working order.
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</li>
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</ul>
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<p>
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An external court may have ("assert") jurisdiction to decide on
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issues such as trademark, privacy, contract and fraud,
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and may do so with legal remedies.
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These are areas where jurisdiction may need
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to be considered carefully:
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</p>
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<ul>
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<li>
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Where NRPs, being not Members of CAcert and not
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bound by agreement, are parties to the dispute.
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E.g., intellectual property disputes may involve
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NRPs and their trademarks;
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</li>
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<li>
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criminal actions or actions likely to result in criminal
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proceedings,
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e.g., fraud;
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</li>
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<li>
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Contracts between
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Members
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that were formed without
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a clause to seek arbitration in the forum;
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</li>
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<li>
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Areas where laws fall outside the Arbitration Act,
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such as privacy;
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</li>
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<li>
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Legal process (subpoenas, etc) delivered by
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an external court of "competent jurisdiction."
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</li>
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</ul>
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<p>
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The Arbitrator must consider jurisdiction and rule on a
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case by case basis whether jurisdiction is asserted,
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either wholly or partially, or declines to hear the case.
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In the event of asserting
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jurisdiction, and a NRP later decides to pursue rights in
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another forum, the Arbitrator should seek the agreement
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of the NRP to file the ruling as part of the new case.
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</p>
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<h3 id="g0.3.4">2.4. Basis in Law </h3>
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<p>
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Each country generally has an Arbitration Act
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that elevates Arbitration as a strong dispute
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resolution forum.
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The Act generally defers to Arbitration
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if the parties have so agreed.
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That is, as
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Members
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,
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you agree to resolve
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all disputes before CAcert's forum.
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This is sometimes called <i>private law</i>
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or <i>alternative dispute resolution</i>.
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</p>
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<p>
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As a matter of public policy, courts will generally
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refer any case back to Arbitration.
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Members
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should understand that they will have
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strictly limited rights to ask the courts to
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seek to have a case heard or to override a Ruling.
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</p>
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<h3 id="g0.3.5">2.5. External Courts </h3>
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<p>
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When an external court claims and asserts its jurisdiction,
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and issues a court order, subpoena or other service to CAcert,
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the CM files the order as a dispute, with the external court
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as <i>Claimant</i>.
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The CM and other support staff are granted no authority to
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act on the basis of any court order, and ordinarily
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must await the order of the Arbitrator
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(which might simply be a repeat of the external court order).
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</p>
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<p>
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The Arbitrator establishes the bona fides of the
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court, and rules.
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The Arbitrator may rule to reject the order,
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for jurisdiction or other reasons.
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By way of example, if all Parties are
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Members,
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then jurisdiction more normally falls within the forum.
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If the Arbitrator rules to reject,
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he should do so only after consulting with CAcert Inc. counsel.
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The Arbitrator's jurisidiction is ordinarily that of
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dealing with the order, and
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not that which the external court has claimed to.
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</p>
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<h3 id="g0.3.6">2.6. Process</h3>
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<p>
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The Arbitrator follows the procedure:
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</p>
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<ol>
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<li>
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Establish the facts.
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The Arbitrator collects the evidence from the parties.
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The Arbitrator may order CAcert Inc. or
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Members
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under jurisdiction to provide support or information.
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The Arbitrator may use email, phone or face-to-face
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meetings as proceedings.
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</li>
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<li>
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Apply the Rules of Dispute Resolution,
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the policies of CAcert and the governing law.
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The Arbitrator may request that the parties
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submit their views.
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The Arbitrator also works to the mission of CAcert,
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the benefit of all
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Members
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, and the community as a whole.
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The Arbitrator may
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seek
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any assistance.
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</li>
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<li>
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Makes a considered Ruling.
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</li>
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</ol>
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<h2 id="g0.4">3. The Ruling</h2>
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<h3 id="g0.4.1">3.1. The Contents </h3>
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<p>
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The Arbitrator records:
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</p>
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<ol>
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<li>
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The Identification of the Parties,
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</li>
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<li>
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The Facts,
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</li>
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<li>
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The logic of the rules and law,
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</li>
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<li>
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The directions and actions to be taken by each party
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(the ruling).
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</li>
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<li>
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The date and place that the ruling is rendered.
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</li>
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</ol>
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<h3 id="g0.4.2">3.2. Process </h3>
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<p>
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Once the Ruling is delivered, the case is closed.
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The Case Manager is responsible for recording the
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Ruling, publishing it, and advising Members.
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</p>
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<p>
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Proceedings are ordinarily private.
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The Ruling is ordinarily published,
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within the bounds of the Privacy Policy.
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The Ruling is written in English.
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</p>
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<p>
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Only under exceptional circumstances can the
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Arbitrator declare the Ruling private <i>under seal</i>.
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Such a declaration must be reviewed in its entirety
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by the Board,
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and the Board must confirm or deny that declaration.
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If it confirms, the existence of any Rulings under seal
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must be published to the
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Members
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in a timely manner
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(within days).
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</p>
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<h3 id="g0.4.3">3.3. Binding and Final </h3>
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<p>
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The Ruling is
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ordinarily final and binding
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on CAcert Inc.and all
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Members
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.
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Ordinarily, all
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Members
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agree to be bound by this dispute
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resolution policy.
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Members
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must declare in the Preliminaries
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any default in agreement or binding.
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</p>
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<p>
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If a person who is not a
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Member
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is a party to the dispute,
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then the Ruling is not binding and final on that person,
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but the Ruling must be presented in filing any dispute
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in another forum such as the person's local courts.
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</p>
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<h3 id="g0.4.4">3.4. Review for Appeal</h3>
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<p>
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In the eventof clear injustices, egregious behaviour or
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unconscionable Rulings,
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a review may be requested by filing a dispute.
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The new Arbitrator reviews the new dispute,
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re-examines and reviews the entire case, then rules on
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whether the case may be re-opened or not.
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</p>
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<p>
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If the Review Arbitrator rules the case be re-opened,
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then the Review Arbitrator refers the case to an Appeal Panel of 3.
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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>
|