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56 Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
57 Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br />
58 <span class="draftadd">DRAFT p20110108 p20121213</span> <br />
59 Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen
61 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>
62 <td valign="top" align="right">
63 <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 />
64 <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>
72 <h1> Dispute Resolution Policy </h1>
74 <h2 id="s0"> 0. Introduction</h2>
77 This is the Dispute Resolution Policy
78 <span class="draftdrop">for CAcert</span>
79 <span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>.
80 Disputes arising out of
82 <span class="draftadd">Inc</span>
83 and interactions between
84 <span class="draftadd">
87 may be addressed through this policy.
88 This document also presents the rules for
89 resolution of disputes.
92 <h3 id="s0.1"> 0.1 Nature of Disputes </h3>
99 Requests for non-routine support actions.
100 CAcert support team has no authority to
101 act outside the normal support facilities made
103 <span class="draftadd">
107 Classical disputes where a <span class="draftadd">Member</span> or another
108 assert claims and demand remedies;
110 Requests by external organisations, including
111 legal processes from foreign courts;
113 Events initiated for training purposes.
116 <h2 id="s1"> 1. Filing</h2>
118 <h3 id="s1.1"> 1.1 Filing Party</h3>
120 Anyone may file a dispute.
121 In filing, they become <i>Claimants</i>.
124 <h3 id="s1.2"> 1.2 Channel for Filing</h3>
127 Disputes are filed by being sent to the normal
128 support channel of CAcert,
129 and a fee may be payable.
133 Such fees as are imposed on filing will be specified
134 on the dispute resolution page of the website.
137 <h3 id="s1.3"> 1.3 Case Manager</h3>
139 The Case Manager (CM) takes control of the filing.
143 CM makes an initial determination as
144 to whether this filing is a dispute
145 for resolution, or it is a request
148 CM logs the case and establishes such
149 documentation and communications support as is customary.
151 If any party acts immediately on the filing
152 (such as an urgent security action),
153 the CM names these parties to the case.
155 CM selects the Arbitrator.
159 The personnel within the CAcert support team
160 are Case Managers, by default, or as directed
161 by the Dispute Resolution Officer <span class="change2">(DRO)</span>.
164 <h3 id="s1.4"> 1.4 Contents</h3>
166 The filing must specify:
170 The filing party(s), being the <i>Claimant(s)</i>.
172 The party(s) to whom the complaint is addressed to,
173 being the <i>Respondent(s)</i>.
174 This will be CAcert in the
175 case of requests for support actions.
176 It may be a <span class="draftadd">Member</span> (possibly unidentified) in the
177 case where one <span class="draftadd">Member</span> has given rise to a complaint against another.
179 The <i>Complaint</i>.
180 For example, a trademark has been infringed,
181 privacy has been breached,
182 or a <span class="draftadd">Member</span> has defrauded using a certificate.
184 The action(s) requested by the filing party
185 (technically, called the <i>relief</i>).
186 For example, to delete an account,
187 to revoke a certificate, or to stop a
188 trademark infringement.
192 If the filing is inadequate for lack of information
193 or for format, the Case Manager
194 may refile with the additional information,
195 attaching the original messages.
198 <h3 id="s1.5"> 1.5 The Arbitrator</h3>
201 The Case Manager selects the Arbitrator according
202 to the mechanism managed by the
203 <span class="change2">DRO</span> <!-- Dispute Resolution Officer -->
204 and approved from time to time.
205 This mechanism is to maintain a list of Arbitrators available for
207 Each selected Arbitrator has the right to decline the dispute,
208 and should decline a dispute with which there exists a conflict
210 The reason for declining should be stated.
211 If no Arbitrator accepts the dispute, the case is
212 closed with status "declined."
216 Arbitrators are experienced Assurers <span class="draftdrop">of CAcert</span>.
217 They should be independent and impartial, including
218 of CAcert <span class="draftadd">Inc.</span> itself where it becomes a party.
221 <h2 id="s2"> 2. The Arbitration</h2>
224 <h3 id="s2.1"> 2.1 Authority</h3>
227 The Board of CAcert <span class="draftadd">Inc.</span> and the
228 <span class="draftadd">
229 Members of the Community
232 full authority to hear disputes and deliver rulings
233 which are binding on CAcert <span class="draftadd">Inc.</span> and the
234 <span class="draftadd">
240 <h3 id="s2.2"> 2.2 Preliminaries</h3>
243 The Arbitrator conducts some preliminaries:
247 The Arbitrator reviews the available documentation
248 and affirms the rules of dispute resolution.
249 Jurisdiction is established, see below.
251 The Arbitrator affirms the governing law (NSW, Australia).
252 The Arbitrator may select local law and local
253 procedures where Claimants and all Respondents
254 agree, are under such jurisdiction, and it is deemed
256 However, this is strictly limited to those parties,
257 and especially, CAcert <span class="draftadd">Inc.</span> and other parties
258 remain under the governing law.
260 The Arbitrator reviews the Respondents and Claimants
261 with a view to dismissal or joining of additional parties.
262 E.g., support personnel may be joined if emergency action was
265 Any parties that are not
266 <span class="draftadd">
269 and are not bound by the
270 <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
271 are given the opportunity to enter into
272 CAcert and be bound by the
273 <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
274 and these rules of arbitration.
276 <!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> -->
277 these Non-Related Persons (NRPs)
279 their rights and remedies under CAcert's policies
280 and forum are strictly limited to
281 <span class="strike">that</span> <span class="change2">those</span>
283 <span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>.
285 may proceed with Arbitration subject to preliminary orders
289 <span class="draftadd">
293 <span class="change2">
296 until the completion of the case.
298 The Arbitrator confirms that all parties accept
299 the forum of dispute resolution.
300 This is especially important where a
301 <span class="draftadd">
305 in a country with no Arbitration Act in law, or
306 where there is reason to believe that a party might
307 go to an external court.
309 The Arbitrator confirms that parties are representing
310 themselves. Parties are entitled to be legally
311 represented, but are not encouraged to do so,
312 bearing in mind the volunteer nature of the
313 organisation and the size of the dispute.
314 If they do so<span class="change2">,</span>
315 they must declare such, including any changes.
317 The Arbitrator may appoint experienced Assurers
318 to assist and represent parties, especially for NRPs.
319 The Case Manager must not provide such assistance.
321 The Arbitrator is bound to maintain the balance
324 The Arbitrator may make any preliminary orders,
325 including protection orders and orders referring
326 to emergency actions already taken.
328 The Arbitrator may request any written pleadings,
329 counterclaims, and/or statements of defence.
333 <h3 id="s2.3"> 2.3 Jurisdiction </h3>
336 Jurisdiction - the right or power to hear and rule on
337 disputes - is initially established by clauses in the
338 <span class="draftadd">
339 CAcert Community Agreement.
341 The agreement must establish:
345 That all Parties agree to binding Arbitration
346 in CAcert's forum of dispute resolution;
348 for all disputes relating to activities within
349 CAcert, issued certificates, roles and actions, etc;
351 as defined by these rules, including the selection
352 of a single Arbitrator;
354 under the Law of NSW, Australia; and
356 the Parties keep email accounts in good working order.
360 An external court may have ("assert") jurisdiction to decide on
361 issues such as trademark, privacy, contract and fraud,
362 and may do so with legal remedies.
363 These are areas where jurisdiction may need
364 to be considered carefully:
368 Where NRPs, being not Members of CAcert and not
369 bound by agreement, are parties to the dispute.
370 E.g., intellectual property disputes may involve
371 NRPs and their trademarks;
373 criminal actions or actions likely to result in criminal
378 <span class="draftadd">
381 that were formed without
382 a clause to seek arbitration in the forum;
384 Areas where laws fall outside the Arbitration Act,
387 Legal process (subpoenas, etc) delivered by
388 an external court of "competent jurisdiction."
392 The Arbitrator must consider jurisdiction and rule on a
393 case by case basis whether jurisdiction is asserted,
394 either wholly or partially, or declines to hear the case.
395 In the event of asserting
396 jurisdiction, and a NRP later decides to pursue rights in
397 another forum, the Arbitrator should seek the agreement
398 of the NRP to file the ruling as part of the new case.
401 <h3 id="s2.4"> 2.4 Basis in Law </h3>
404 Each country generally has an Arbitration Act
405 that elevates Arbitration as a strong dispute
407 The Act generally defers to Arbitration
408 if the parties have so agreed.
410 <span class="draftadd">
413 <span class="draftdrop">users of CAcert</span>,
415 all disputes before CAcert's forum.
416 This is sometimes called <i>private law</i>
417 or <i>alternative dispute resolution</i>.
421 As a matter of public policy, courts will generally
422 refer any case back to Arbitration.
423 <span class="draftadd">
426 should understand that they will have
427 strictly limited rights to ask the courts to
428 seek to have a case heard or to override a Ruling.
432 <h3 id="s2.5"> 2.5 External Courts </h3>
435 When an external court claims and asserts its jurisdiction,
436 and issues a court order, subpoena or other service to CAcert,
437 the CM files the order as a dispute, with the external court
439 The CM and other support staff are granted no authority to
440 act on the basis of any court order, and ordinarily
441 must await the order of the Arbitrator
442 (which might simply be a repeat of the external court order).
446 The Arbitrator establishes the bona fides of the
448 The Arbitrator may rule to reject the order,
449 for jurisdiction or other reasons.
450 By way of example, if all Parties are
451 <span class="draftadd">
454 then jurisdiction more normally falls within the forum.
455 If the Arbitrator rules to reject,
456 he should do so only after consulting with CAcert <span class="draftadd">Inc.</span> counsel.
457 The Arbitrator's jurisidiction is ordinarily that of
458 dealing with the order, and
459 not that which the external court has claimed to.
463 <h3 id="s2.6"> 2.6 Process</h3>
466 The Arbitrator follows the procedure:
472 The Arbitrator collects the evidence from the parties.
473 The Arbitrator may order CAcert <span class="draftadd">Inc.</span> or
474 <span class="draftadd">
477 under jurisdiction to provide support or information.
478 The Arbitrator may use email, phone or face-to-face
479 meetings as proceedings.
481 Apply the Rules of Dispute Resolution,
482 the policies of CAcert and the governing law.
483 The Arbitrator may request that the parties
485 The Arbitrator also works to the mission of CAcert,
487 <span class="draftadd">
490 , and the community as a whole.
492 <span class="draftadd">
497 Makes a considered Ruling.
500 <h2 id="s3"> 3. The Ruling</h2>
502 <h3 id="s3.1"> 3.1 The Contents </h3>
505 The Arbitrator records:
509 The Identification of the Parties,
513 The logic of the rules and law,
515 The directions and actions to be taken by each party
518 The date and place that the ruling is rendered.
522 <h3 id="s3.2"> 3.2 Process </h3>
524 Once the Ruling is delivered, the case is closed.
525 The Case Manager is responsible for recording the
526 Ruling, publishing it, and advising <span class="draftadd">Members</span>.
530 Proceedings are ordinarily private.
531 The Ruling is ordinarily published,
532 within the bounds of the Privacy Policy.
533 The Ruling is written in English.
537 Only under exceptional circumstances can the
538 Arbitrator declare the Ruling private <i>under seal</i>.
539 Such a declaration must be reviewed in its entirety
541 and the Board must confirm or deny that declaration.
542 If it confirms, the existence of any Rulings under seal
543 must be published to the
544 <span class="draftadd">
551 <h3 id="s3.3"> 3.3 Binding and Final </h3>
555 <!-- (DRAFT p20110108) -->
556 <span class="draftadd">ordinarily final and binding </span>
557 <span class="draftdrop">binding and final</span>
558 on CAcert <span class="draftadd">Inc.</span> and all
559 <span class="draftadd">
564 <span class="draftadd">
567 agree to be bound by this dispute
569 <span class="draftadd">
572 must declare in the Preliminaries
573 any default in agreement or binding.
577 If a person who is not a
578 <span class="draftadd">
581 is a party to the dispute,
582 then the Ruling is not binding and final on that person,
583 but the Ruling must be presented in filing any dispute
584 in another forum such as the person's local courts.
587 <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>
590 In the <span class="draftadd">event</span> <span class="draftdrop">case</span> of clear injustices, egregious behaviour or
591 unconscionable Rulings,
592 <span class="draftadd">
593 a review may be requested by filing a dispute (DRAFT p20110108).
595 <span class="draftdrop">
596 parties may seek to re-open the
597 case by filing a dispute.
599 The new Arbitrator reviews the new dispute,
600 re-examines and reviews the entire case, then rules on
601 whether the case may be re-opened or not.
605 <span class="draftadd">
606 If the Review Arbitrator rules the case be re-opened,
607 then the Review Arbitrator refers the case to an Appeal Panel of 3.
608 The Appeal Panel is led by a Senior Arbitrator,
609 and is formed according to procedures established
610 by the DRO from time to time.
611 The Appeal Panel hears the case and delivers a final and binding Ruling.
614 <span class="draftdrop">
615 If the new Arbitrator rules the case be re-opened,
616 then it is referred to the Board of CAcert Inc.
617 The Board hears the case and delivers a final
622 <h3 id="s3.5"> 3.5 Liability </h3>
625 All liability of the Arbitrator for any act in
626 connection with deciding a dispute is excluded
627 by all parties, provided such act does not constitute
628 an intentional breach of duty.
629 All liability of the Arbitrators, CAcert <span class="draftadd">Inc.</span>, its officers and its
630 employees (including Case Manager)
631 for any other act or omission in connection with
632 arbitration proceedings is excluded, provided such acts do not
633 constitute an intentional or grossly negligent breach of duty.
637 The above provisions may only be overridden by
639 (by means of a new dispute causing referral to the Board).
643 <h3 id="s3.6"> 3.6 Remedies </h3>
646 The Arbitrator generally instructs using internal remedies,
647 that is ones that are within the general domain of
648 <span class="draftdrop">CAcert</span>
649 <span class="draftadd">the Community</span>,
650 but there are some external remedies at his disposal.
651 He may rule and instruct any of the parties on these issues.
655 "community service" typically including
657 attend and assure people at trade shows / open source gatherings,
659 writing documentation
661 serve in <span class="change2">a</span> role - support, dispute arbitration
663 or others as decided.
666 Fined by loss of assurance points, which may result
667 in losing Assurer or Assured status.
673 Revoking of any certificates.
676 Monetary fine up to the liability cap established for
677 each party as described in the
678 <span class="draftadd">
679 CAcert Community Agreement.
683 Exclusion from community.
686 Reporting to applicable authorities.
689 Changes to policies and procedures.
694 The Arbitrator is not limited within the general domain
695 of CAcert, and may instruct novel remedies as seen fit.
696 Novel remedies outside the domain may be routinely
697 confirmed by the Board by way of appeal process,
698 in order to establish precedent.
702 <h2 id="s4"> 4. Appendix</h2>
705 <h3 id="s4.1"> 4.1 The Advantages of this Forum </h3>
707 The advantage of this process for
708 <span class="draftadd">
715 CAcert and <span class="draftadd">Members</span> operate across many jurisdictions.
716 Arbitration allows us to select a single set of
717 rules across all jurisdictions.
719 Arbitration allows CAcert to appropriately separate
720 out the routine support actions from difficult dispute
721 actions. Support personnel have no authority to
722 act, the appropriately selected Arbitrator has all
724 Good governance is thus maintained.
726 This forum allows CAcert <span class="draftadd">Members</span> to look after themselves
727 in a community, without exposing each other to potentially
728 disastrous results in strange courts from foreign lands.
730 By volunteering to resolve things "in-house" the costs
733 Even simple support issues such as password changing
734 can be improved by treating as a dispute. A clear
735 chain of request, analysis, ruling and action can be established.
737 CAcert Assurers can develop the understanding and the rules
738 for sorting out own problems far better than courts or
739 other external agencies.
742 <h3 id="s4.2"> 4.2 The Disadvantages of this Forum </h3>
745 Some disadvantages exist.
749 <span class="draftadd">Members</span> may have their rights trampled over.
750 In such a case, the community should strive to
752 and refer it to the board.
756 <span class="draftadd">Members</span> may feel overwhelmed by the formality
758 It is kept formal so as to establish good and proper
759 authority to act; otherwise, support and other
760 people in power may act without thought and with
761 damaging consequences.
763 A country may not have an Arbitration Act.
764 In that case, the parties should enter into
766 If they choose to break that spirit,
767 they should also depart the community.
770 <h3 id="s4.3"> 4.3 Process and Flow </h3>
773 To the extent reasonable, the Arbitrator conducts
774 the arbitration as with any legal proceedings.
775 This means that the process and style should follow
780 However, the Arbitrator is unlikely to be trained in
781 law. Hence, common sense must be applied, and the
782 Arbitrator has wide latitude to rule on any particular
783 motion, pleading, submission. The Arbitrator's ruling
784 is final within the arbitration.
788 Note also that many elements of legal proceedings are
789 deliberately left out of the rules.