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640 lines
18 KiB
PHTML
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<head>
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<title>Dispute Resulution Policy</title>
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</head>
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<body>
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<table width="100%">
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<tr>
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<td> DRP </td>
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<td> </td>
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<td width="20%"> Teus Hagen </td>
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</tr>
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<tr>
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<td> POLICY <a href="http://wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a> </td>
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<td> </td>
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<td>
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$Date: 2008/01/18 22:56:31 $
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except it does not work through the website.
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</td>
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</tr>
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<tr>
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<td> COD7 </td>
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<td> </td>
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<td> <!-- contributors --> </td>
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</tr>
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<tr> <!-- title only -->
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<td> </td>
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<td > <b>Dispute Resolution Policy</b> </td>
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<td> </td>
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</tr>
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</table>
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<h2> <a name="0"> 0. </a> Introduction</h2>
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<p>
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This is the Dispute Resolution Policy for CAcert.
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Disputes arising out of
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operations by CAcert and interactions between
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users 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> <a name="0.1"> 0.1 </a> 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 Users;
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</li><li>
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Classical disputes where a User 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> <a name="1"> 1. </a> Filing</h2>
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<h3> <a name="1.1"> 1.1 </a> 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> <a name="1.2">1.2 </a> 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> <a name="1.3">1.3 </a> 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.
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</p>
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<h3> <a name="1.4">1.4 </a> 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 User (possibly unidentified) in the
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case where one User 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 user 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> <a name="1.5">1.5 </a> 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 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 of CAcert.
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They should be independent and impartial, including
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of CAcert itself where it becomes a party.
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</p>
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<h2> <a name="2"> 2. </a> The Arbitration</h2>
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<h3> <a name="2.1">2.1 </a> Authority</h3>
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<p>
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The Board of CAcert and the Users vest in Arbitrators
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full authority to hear disputes and deliver rulings
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which are binding on CAcert and the Users.
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</p>
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<h3> <a name="2.2">2.2 </a> 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 and other parties
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remains 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 personel 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 Users and are not bound
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by the CPS are given the opportunity to enter into
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CAcert and be bound by the CPS and these rules of arbitration.
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If these Non-Related Persons (NRPs) remain outside,
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their rights and remedies under CAcert's policies
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and forum are strictly limited to that specified in the
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Non-Related Persons -- Disclaimer and Licence.
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NRPs 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 Users may not resign 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 User 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 they must declare such, including any
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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 to 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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counterclaim, and/or statements of defence.
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</li></ul>
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<h3> <a name="2.3">2.3 </a> Jurisdiction </h3>
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<p>
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Jurisidiction - 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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User agreements for all CAcert Users.
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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 Users 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> <a name="2.4">2.4 </a> 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 Users of CAcert, 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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Users 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> <a name="2.5">2.5 </a> 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 registered Users,
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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 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> <a name="2.6">2.6 </a> 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><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 or Users under
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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 Users, and the community as a whole.
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The Arbitrator may 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> <a name="3"> 3. </a> The Ruling</h2>
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<h3> <a name="3.1">3.1 </a> 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><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> <a name="3.2">3.2 </a> 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 users.
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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 existance of any Rulings under seal
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must be published to the Users in a timely manner
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(within days).
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</p>
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<h3> <a name="3.3">3.3 </a> Binding and Final </h3>
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<p>
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The Ruling is binding and final on CAcert and all Users.
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Ordinarily, all Users agree to be bound by this dispute
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resolution policy. Users 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 User 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> <a name="3.4">3.4 </a> Re-opening the Case or Appeal </h3>
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<p>
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In the case of clear injustices, egregious behaviour or
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unconscionable Rulings, parties may seek to re-open the
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case by filing a dispute. The new Arbitrator
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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 new Arbitrator rules the case be re-opened,
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then it is referred to the Board of CAcert Inc.
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The Board hears the case and delivers a final
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and binding Ruling.
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</p>
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<h3> <a name="3.5">3.5 </a> Liability </h3>
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<p>
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All liability of the Arbitrator for any act in
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connection with deciding a dispute is excluded
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by all parties, provided such act does not constitute
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an intentional breach of duty.
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All liability of the Arbitrators, CAcert, its officers and its
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employees (including Case Manager)
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for any other act or omission in connection with
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arbitration proceedings is excluded, provided such acts do not
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constitute an intentional or grossly negligent breach of duty.
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</p>
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<p>
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The above provisions may only be overridden by
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appeal process (by means of a new dispute causing
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referral to the Board).
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</p>
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<h3> <a name="3.6">3.6 </a> Remedies </h3>
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<p>
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The Arbitrator generally instructs using internal remedies,
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that is ones that are within the general domain of CAcert,
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but there are some external remedies at his disposal.
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He may rule and instruct any of the parties on these issues.
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</p>
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<ul><li>
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"community service" typically including
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<ul><li>
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attend and assure people at trade shows / open source gatherings,
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</li><li>
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writing documentation
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</li><li>
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serve in role - support, dispute arbitration
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</li></ul>
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or others as decided.
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</li><li>
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Fined by loss of assurance points, which may result
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in losing Assurer or Assured status.
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</li><li>
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Retraining in role.
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</li><li>
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Revoking of any certificates.
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</li><li>
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Monetary fine up to the liability cap established for
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each party as described in the Registered User Agreement.
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</li><li>
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Exclusion from community.
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</li><li>
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Reporting to applicable authorities.
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</li><li>
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Changes to policies and procedures.
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</li></ul>
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<p>
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The Arbitrator is not limited within the general domain
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of CAcert, and may instruct novel remedies as seen fit.
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Novel remedies outside the domain may be routinely
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confirmed by the Board by way of appeals process,
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in order to establish precedent.
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</p>
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<h2> <a name="4"> 4. </a> Appendix</h2>
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<h3> <a name="4.1">4.1 </a> The Advantages of this Forum </h3>
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<p>
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The advantage of this process for Users is:
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</p>
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<ul><li>
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CAcert and Users operate across many jurisdictions.
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Arbitration allows us to select a single set of
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rules across all jurisdictions.
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</li><li>
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Arbitration allows CAcert to appropriately separate
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out the routine support actions from difficult dispute
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actions. Support personnel have no authority to
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act, the appropriately selected Arbitrator has all
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authority to act.
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Good governance is thus maintained.
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</li><li>
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This forum allows CAcert Users to look after themselves
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in a community, without exposing each other to potentially
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disastrous results in strange courts from foreign lands.
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</li><li>
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By volunteering to resolve things "in-house" the costs
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are reduced.
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</li><li>
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Even simple support issues such as password changing
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can be improved by treating as a dispute. A clear
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chain of request, analysis, ruling and action can be established.
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</li><li>
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CAcert Assurers can develop the understanding and the rules
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for sorting out own problems far better than courts or
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other external agencies.
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</li></ul>
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<h3> <a name="4.2">4.2 </a> The Disadvantages of this Forum </h3>
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<p>
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Some disadvantages exist.
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</p>
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<ul><li>
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Users may have their rights trampled over.
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In such a case, the community should strive to
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re-open the case and refer it to the board.
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</li><li>
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Users may feel overwhelmed by the formality
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of the process.
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It is kept formal so as to establish good and proper
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authority to act; otherwise, support and other
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people in power may act without thought and with
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damaging consequences.
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</li><li>
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A country may not have an Arbitration Act.
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In that case, the parties should enter into
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spirit of the forum.
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If they choose to break that spirit,
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they should also depart the community.
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</li></ul>
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<h3> <a name="4.3">4.3 </a> Process and Flow </h3>
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<p>
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To the extent reasonable, the Arbitrator conducts
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the arbitration as with any legal proceedings.
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This means that the process and style should follow
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legal tradition.
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</p>
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<p>
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However, the Arbitrator is unlikely to be trained in
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law. Hence, common sense must be applied, and the
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Arbitrator has wide latitude to rule on any particular
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motion, pleading, submission. The Arbitrator's ruling
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is final within the arbitration.
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</p>
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<p>
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Note also that many elements of legal proceedings are
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deliberately left out of the rules.
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</p>
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</body>
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