794 lines
22 KiB
PHP
794 lines
22 KiB
PHP
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<title>Dispute Resulution Policy</title>
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<body>
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<div class="comment">
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<table width="100%">
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<tr>
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<td>
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Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
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Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br />
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<span class="draftadd">DRAFT p20110108 p20121213</span> <br />
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Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen
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</a><br />
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Licence: <a style="color: steelblue" href="//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><br /></td>
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<td valign="top" align="right">
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<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 />
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<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>
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</td>
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</tr>
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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="s0"> 0. Introduction</h2>
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<p>
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This is the Dispute Resolution Policy
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<span class="draftdrop">for CAcert</span>
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<span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>.
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Disputes arising out of
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operations by CAcert
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<span class="draftadd">Inc</span>
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and interactions between
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<span class="draftadd">
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Members
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</span>
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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="s0.1"> 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><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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<span class="draftadd">
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Members;
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</span>
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</li><li>
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Classical disputes where a <span class="draftadd">Member</span> or another
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assert claims and demand remedies;
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</li><li>
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Requests by external organisations, including
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legal processes from foreign courts;
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</li><li>
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Events initiated for training purposes.
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</li></ul>
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<h2 id="s1"> 1. Filing</h2>
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<h3 id="s1.1"> 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="s1.2"> 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="s1.3"> 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><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><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><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><li>
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CM selects the Arbitrator.
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</li></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 <span class="change2">(DRO)</span>.
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</p>
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<h3 id="s1.4"> 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><li>
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The filing party(s), being the <i>Claimant(s)</i>.
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</li><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 <span class="draftadd">Member</span> (possibly unidentified) in the
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case where one <span class="draftadd">Member</span> has given rise to a complaint against another.
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</li><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 <span class="draftadd">Member</span> has defrauded using a certificate.
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</li><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></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="s1.5"> 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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<span class="change2">DRO</span> <!-- Dispute Resolution Officer -->
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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 <span class="draftdrop">of CAcert</span>.
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They should be independent and impartial, including
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of CAcert <span class="draftadd">Inc.</span> itself where it becomes a party.
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</p>
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<h2 id="s2"> 2. The Arbitration</h2>
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<h3 id="s2.1"> 2.1 Authority</h3>
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<p>
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The Board of CAcert <span class="draftadd">Inc.</span> and the
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<span class="draftadd">
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Members of the Community
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</span>
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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 <span class="draftadd">Inc.</span> and the
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<span class="draftadd">
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Members.
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</span>
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</p>
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<h3 id="s2.2"> 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><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><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 <span class="draftadd">Inc.</span> and other parties
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remain under the governing law.
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</li><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><li>
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Any parties that are not
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<span class="draftadd">
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Members
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</span>
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and are not bound by the
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<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
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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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<span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
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and these rules of arbitration.
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If
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<!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> -->
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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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<span class="strike">that</span> <span class="change2">those</span>
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specified in the
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<span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>.
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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><li>
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Participating
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<span class="draftadd">
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Members
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</span>
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may not resign
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<span class="change2">
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from the Community
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</span>
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until the completion of the case.
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</li><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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<span class="draftadd">
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Member
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</span>
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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><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<span class="change2">,</span>
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they must declare such, including any changes.
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</li><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><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><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><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></ul>
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<h3 id="s2.3"> 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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<span class="draftadd">
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CAcert Community Agreement.
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</span>
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The agreement must establish:
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</p>
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<ul><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><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><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><li>
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under the Law of NSW, Australia; and
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</li><li>
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the Parties keep email accounts in good working order.
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</li></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><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><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><li>
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Contracts between
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<span class="draftadd">
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Members
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</span>
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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><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><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></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="s2.4"> 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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<span class="draftadd">
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Members
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</span>
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<span class="draftdrop">users of CAcert</span>,
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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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<span class="draftadd">
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Members
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</span>
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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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|
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<h3 id="s2.5"> 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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<span class="draftadd">
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Members,
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</span>
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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 <span class="draftadd">Inc.</span> 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="s2.6"> 2.6 Process</h3>
|
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|
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<p>
|
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The Arbitrator follows the procedure:
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</p>
|
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|
|
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<ol><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 <span class="draftadd">Inc.</span> or
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<span class="draftadd">
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Members
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</span>
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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><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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<span class="draftadd">
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Members
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</span>
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, and the community as a whole.
|
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The Arbitrator may
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<span class="draftadd">
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seek
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</span>
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any assistance.
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</li><li>
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Makes a considered Ruling.
|
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</li></ol>
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<h2 id="s3"> 3. The Ruling</h2>
|
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|
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<h3 id="s3.1"> 3.1 The Contents </h3>
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|
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<p>
|
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The Arbitrator records:
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</p>
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<ol><li>
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The Identification of the Parties,
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</li><li>
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The Facts,
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</li><li>
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The logic of the rules and law,
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</li><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><li>
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The date and place that the ruling is rendered.
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</li></ol>
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<h3 id="s3.2"> 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 <span class="draftadd">Members</span>.
|
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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
|
|
<span class="draftadd">
|
|
Members
|
|
</span>
|
|
in a timely manner
|
|
(within days).
|
|
</p>
|
|
|
|
<h3 id="s3.3"> 3.3 Binding and Final </h3>
|
|
|
|
<p>
|
|
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
|
|
<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 id="s3.4"> 3.4 <span class="draftadd">Review for Appeal (DRAFT p20110108)</span> <span class="draftdrop">Re-opening the Case or Appeal</span> </h3>
|
|
|
|
<p>
|
|
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 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 <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
|
|
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="s3.6"> 3.6 Remedies </h3>
|
|
|
|
<p>
|
|
The Arbitrator generally instructs using internal remedies,
|
|
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>
|
|
|
|
<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 <span class="change2">a</span> 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
|
|
<span class="draftadd">
|
|
CAcert Community Agreement.
|
|
</span>
|
|
|
|
</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="s4"> 4. Appendix</h2>
|
|
|
|
|
|
<h3 id="s4.1"> 4.1 The Advantages of this Forum </h3>
|
|
<p>
|
|
The advantage of this process for
|
|
<span class="draftadd">
|
|
Members
|
|
</span>
|
|
is:
|
|
</p>
|
|
|
|
<ul><li>
|
|
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>
|
|
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 <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>
|
|
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="s4.2"> 4.2 The Disadvantages of this Forum </h3>
|
|
|
|
<p>
|
|
Some disadvantages exist.
|
|
</p>
|
|
|
|
<ul><li>
|
|
<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.
|
|
|
|
|
|
</li><li>
|
|
<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
|
|
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="s4.3"> 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>
|