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-
-<div class="comment">
-<table width="100%">
-
-<tr>
-<td>
- Name: DRP <a style="color: steelblue" href="//svn.cacert.org/CAcert/Policies/ControlledDocumentList.html">COD7</a><br />
- Status: POLICY <a style="color: steelblue" href="//wiki.cacert.org/wiki/TopMinutes-20070917">m20070919.3</a><br />
- <span class="draftadd">DRAFT p20110108 p20121213</span> <br />
- Editor: <a style="color: steelblue" href="//wiki.cacert.org/TeusHagen">Teus Hagen
-</a><br />
- 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>
-<td valign="top" align="right">
- <a href="//www.cacert.org/policy/PolicyOnPolicy.html"><img src="/images/cacert-policy.png" alt="TTP-Assist Status - POLICY" height="31" width="88" style="border-style: none;" /></a><br />
- <a href="//www.cacert.org/policy/PolicyOnPolicy.html"><img src="/images/cacert-draft.png" alt="TTP-Assist Status - DRAFT" height="31" width="88" style="border-style: none;" /></a>
-
-</td>
-</tr>
-</table>
-</div>
-
-
-<h1> Dispute Resolution Policy </h1>
-
-<h2 id="s0"> 0. Introduction</h2>
-
-<p>
-This is the Dispute Resolution Policy
-<span class="draftdrop">for CAcert</span>
-<span class="draftadd">for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA)</span>.
-Disputes arising out of
-operations by CAcert
-<span class="draftadd">Inc</span>
-and interactions between
-<span class="draftadd">
-Members
-</span>
-may be addressed through this policy.
-This document also presents the rules for
-resolution of disputes.
-</p>
-
-<h3 id="s0.1"> 0.1 Nature of Disputes </h3>
-
-<p>
-Disputes include:
-</p>
-
-<ul><li>
- Requests for non-routine support actions.
- CAcert support team has no authority to
- act outside the normal support facilities made
- available to
- <span class="draftadd">
- Members;
- </span>
- </li><li>
- Classical disputes where a <span class="draftadd">Member</span> or another
- assert claims and demand remedies;
- </li><li>
- Requests by external organisations, including
- legal processes from foreign courts;
- </li><li>
- Events initiated for training purposes.
-</li></ul>
-
-<h2 id="s1"> 1. Filing</h2>
-
-<h3 id="s1.1"> 1.1 Filing Party</h3>
-<p>
-Anyone may file a dispute.
-In filing, they become <i>Claimants</i>.
-</p>
-
-<h3 id="s1.2"> 1.2 Channel for Filing</h3>
-
-<p>
-Disputes are filed by being sent to the normal
-support channel of CAcert,
-and a fee may be payable.
-</p>
-
-<p>
-Such fees as are imposed on filing will be specified
-on the dispute resolution page of the website.
-</p>
-
-<h3 id="s1.3"> 1.3 Case Manager</h3>
-<p>
-The Case Manager (CM) takes control of the filing.
-</p>
-
-<ol><li>
- CM makes an initial determination as
- to whether this filing is a dispute
- for resolution, or it is a request
- for routine support.
- </li><li>
- CM logs the case and establishes such
- documentation and communications support as is customary.
- </li><li>
- If any party acts immediately on the filing
- (such as an urgent security action),
- the CM names these parties to the case.
- </li><li>
- CM selects the Arbitrator.
-</li></ol>
-
-<p>
-The personnel within the CAcert support team
-are Case Managers, by default, or as directed
-by the Dispute Resolution Officer <span class="change2">(DRO)</span>.
-</p>
-
-<h3 id="s1.4"> 1.4 Contents</h3>
-<p>
-The filing must specify:
-</p>
-
-<ul><li>
- The filing party(s), being the <i>Claimant(s)</i>.
- </li><li>
- The party(s) to whom the complaint is addressed to,
- being the <i>Respondent(s)</i>.
- This will be CAcert in the
- case of requests for support actions.
- It may be a <span class="draftadd">Member</span> (possibly unidentified) in the
- case where one <span class="draftadd">Member</span> has given rise to a complaint against another.
- </li><li>
- The <i>Complaint</i>.
- For example, a trademark has been infringed,
- privacy has been breached,
- or a <span class="draftadd">Member</span> has defrauded using a certificate.
- </li><li>
- The action(s) requested by the filing party
- (technically, called the <i>relief</i>).
- For example, to delete an account,
- to revoke a certificate, or to stop a
- trademark infringement.
-</li></ul>
-
-<p>
-If the filing is inadequate for lack of information
-or for format, the Case Manager
-may refile with the additional information,
-attaching the original messages.
-</p>
-
-<h3 id="s1.5"> 1.5 The Arbitrator</h3>
-
-<p>
-The Case Manager selects the Arbitrator according
-to the mechanism managed by the
-<span class="change2">DRO</span> <!-- Dispute Resolution Officer -->
-and approved from time to time.
-This mechanism is to maintain a list of Arbitrators available for
-dispute resolution.
-Each selected Arbitrator has the right to decline the dispute,
-and should decline a dispute with which there exists a conflict
-of interest.
-The reason for declining should be stated.
-If no Arbitrator accepts the dispute, the case is
-closed with status "declined."
-</p>
-
-<p>
-Arbitrators are experienced Assurers <span class="draftdrop">of CAcert</span>.
-They should be independent and impartial, including
-of CAcert <span class="draftadd">Inc.</span> itself where it becomes a party.
-</p>
-
-<h2 id="s2"> 2. The Arbitration</h2>
-
-
-<h3 id="s2.1"> 2.1 Authority</h3>
-
-<p>
-The Board of CAcert <span class="draftadd">Inc.</span> and the
-<span class="draftadd">
-Members of the Community
-</span>
- vest in Arbitrators
-full authority to hear disputes and deliver rulings
-which are binding on CAcert <span class="draftadd">Inc.</span> and the
-<span class="draftadd">
-Members.
-</span>
-</p>
-
-
-<h3 id="s2.2"> 2.2 Preliminaries</h3>
-
-<p>
-The Arbitrator conducts some preliminaries:
-</p>
-
-<ul><li>
- The Arbitrator reviews the available documentation
- and affirms the rules of dispute resolution.
- Jurisdiction is established, see below.
- </li><li>
- The Arbitrator affirms the governing law (NSW, Australia).
- The Arbitrator may select local law and local
- procedures where Claimants and all Respondents
- agree, are under such jurisdiction, and it is deemed
- more appropriate.
- However, this is strictly limited to those parties,
- and especially, CAcert <span class="draftadd">Inc.</span> and other parties
- remain under the governing law.
- </li><li>
- The Arbitrator reviews the Respondents and Claimants
- with a view to dismissal or joining of additional parties.
- E.g., support personnel may be joined if emergency action was
- taken.
- </li><li>
- Any parties that are not
- <span class="draftadd">
- Members
- </span>
- and are not bound by the
- <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
- are given the opportunity to enter into
- CAcert and be bound by the
- <span class="draftdrop">CPS</span> <span class="draftadd">CCA</span>
- and these rules of arbitration.
- If
- <!-- <span class="draftdrop">these Non-Related Persons (NRPs)</span> <span class="change">they</span> -->
- these Non-Related Persons (NRPs)
- remain outside,
- their rights and remedies under CAcert's policies
- and forum are strictly limited to
- <span class="strike">that</span> <span class="change2">those</span>
- specified in the
- <span class="draftdrop">Non-Related Persons -- Disclaimer and Licence</span> <span class="draftadd">Root Distribution License</span>.
- NRPs
- may proceed with Arbitration subject to preliminary orders
- of the Arbitrator.
- </li><li>
- Participating
- <span class="draftadd">
- Members
- </span>
- may not resign
- <span class="change2">
- from the Community
- </span>
- until the completion of the case.
- </li><li>
- The Arbitrator confirms that all parties accept
- the forum of dispute resolution.
- This is especially important where a
- <span class="draftadd">
- Member
- </span>
- might be
- in a country with no Arbitration Act in law, or
- where there is reason to believe that a party might
- go to an external court.
- </li><li>
- The Arbitrator confirms that parties are representing
- themselves. Parties are entitled to be legally
- represented, but are not encouraged to do so,
- bearing in mind the volunteer nature of the
- organisation and the size of the dispute.
- If they do so<span class="change2">,</span>
- they must declare such, including any changes.
- </li><li>
- The Arbitrator may appoint experienced Assurers
- to assist and represent parties, especially for NRPs.
- The Case Manager must not provide such assistance.
- </li><li>
- The Arbitrator is bound to maintain the balance
- of legal fairness.
- </li><li>
- The Arbitrator may make any preliminary orders,
- including protection orders and orders referring
- to emergency actions already taken.
- </li><li>
- The Arbitrator may request any written pleadings,
- counterclaims, and/or statements of defence.
-</li></ul>
-
-
-<h3 id="s2.3"> 2.3 Jurisdiction </h3>
-
-<p>
-Jurisdiction - the right or power to hear and rule on
-disputes - is initially established by clauses in the
-<span class="draftadd">
-CAcert Community Agreement.
-</span>
-The agreement must establish:
-</p>
-
-<ul><li>
- That all Parties agree to binding Arbitration
- in CAcert's forum of dispute resolution;
- </li><li>
- for all disputes relating to activities within
- CAcert, issued certificates, roles and actions, etc;
- </li><li>
- as defined by these rules, including the selection
- of a single Arbitrator;
- </li><li>
- under the Law of NSW, Australia; and
- </li><li>
- the Parties keep email accounts in good working order.
-</li></ul>
-
-<p>
-An external court may have ("assert") jurisdiction to decide on
-issues such as trademark, privacy, contract and fraud,
-and may do so with legal remedies.
-These are areas where jurisdiction may need
-to be considered carefully:
-</p>
-
-<ul><li>
- Where NRPs, being not Members of CAcert and not
- bound by agreement, are parties to the dispute.
- E.g., intellectual property disputes may involve
- NRPs and their trademarks;
- </li><li>
- criminal actions or actions likely to result in criminal
- proceedings,
- e.g., fraud;
- </li><li>
- Contracts between
- <span class="draftadd">
- Members
- </span>
- that were formed without
- a clause to seek arbitration in the forum;
- </li><li>
- Areas where laws fall outside the Arbitration Act,
- such as privacy;
- </li><li>
- Legal process (subpoenas, etc) delivered by
- an external court of "competent jurisdiction."
-</li></ul>
-
-<p>
-The Arbitrator must consider jurisdiction and rule on a
-case by case basis whether jurisdiction is asserted,
-either wholly or partially, or declines to hear the case.
-In the event of asserting
-jurisdiction, and a NRP later decides to pursue rights in
-another forum, the Arbitrator should seek the agreement
-of the NRP to file the ruling as part of the new case.
-</p>
-
-<h3 id="s2.4"> 2.4 Basis in Law </h3>
-
-<p>
-Each country generally has an Arbitration Act
-that elevates Arbitration as a strong dispute
-resolution forum.
-The Act generally defers to Arbitration
-if the parties have so agreed.
-That is, as
- <span class="draftadd">
- Members
- </span>
-<span class="draftdrop">users of CAcert</span>,
-you agree to resolve
-all disputes before CAcert's forum.
-This is sometimes called <i>private law</i>
-or <i>alternative dispute resolution</i>.
-</p>
-
-<p>
-As a matter of public policy, courts will generally
-refer any case back to Arbitration.
- <span class="draftadd">
- Members
- </span>
-should understand that they will have
-strictly limited rights to ask the courts to
-seek to have a case heard or to override a Ruling.
-</p>
-
-
-<h3 id="s2.5"> 2.5 External Courts </h3>
-
-<p>
- When an external court claims and asserts its jurisdiction,
- and issues a court order, subpoena or other service to CAcert,
- the CM files the order as a dispute, with the external court
- as <i>Claimant</i>.
- The CM and other support staff are granted no authority to
- act on the basis of any court order, and ordinarily
- must await the order of the Arbitrator
- (which might simply be a repeat of the external court order).
-</p>
-
-<p>
- The Arbitrator establishes the bona fides of the
- court, and rules.
- The Arbitrator may rule to reject the order,
- for jurisdiction or other reasons.
- By way of example, if all Parties are
- <span class="draftadd">
- Members,
- </span>
- then jurisdiction more normally falls within the forum.
- If the Arbitrator rules to reject,
- he should do so only after consulting with CAcert <span class="draftadd">Inc.</span> counsel.
- The Arbitrator's jurisidiction is ordinarily that of
- dealing with the order, and
- not that which the external court has claimed to.
-</p>
-
-
-<h3 id="s2.6"> 2.6 Process</h3>
-
-<p>
-The Arbitrator follows the procedure:
-</p>
-
-
-<ol><li>
- Establish the facts.
- The Arbitrator collects the evidence from the parties.
- The Arbitrator may order CAcert <span class="draftadd">Inc.</span> or
- <span class="draftadd">
- Members
- </span>
- under jurisdiction to provide support or information.
- The Arbitrator may use email, phone or face-to-face
- meetings as proceedings.
- </li><li>
- Apply the Rules of Dispute Resolution,
- the policies of CAcert and the governing law.
- The Arbitrator may request that the parties
- submit their views.
- The Arbitrator also works to the mission of CAcert,
- the benefit of all
- <span class="draftadd">
- Members
- </span>
- , and the community as a whole.
- The Arbitrator may
- <span class="draftadd">
- seek
- </span>
- any assistance.
- </li><li>
- Makes a considered Ruling.
-</li></ol>
-
-<h2 id="s3"> 3. The Ruling</h2>
-
-<h3 id="s3.1"> 3.1 The Contents </h3>
-
-<p>
-The Arbitrator records:
-</p>
-
-<ol><li>
- The Identification of the Parties,
- </li><li>
- The Facts,
- </li><li>
- The logic of the rules and law,
- </li><li>
- The directions and actions to be taken by each party
- (the ruling).
- </li><li>
- The date and place that the ruling is rendered.
-</li></ol>
-
-
-<h3 id="s3.2"> 3.2 Process </h3>
-<p>
-Once the Ruling is delivered, the case is closed.
-The Case Manager is responsible for recording the
-Ruling, publishing it, and advising <span class="draftadd">Members</span>.
-</p>
-
-<p>
-Proceedings are ordinarily private.
-The Ruling is ordinarily published,
-within the bounds of the Privacy Policy.
-The Ruling is written in English.
-</p>
-
-<p>
-Only under exceptional circumstances can the
-Arbitrator declare the Ruling private <i>under seal</i>.
-Such a declaration must be reviewed in its entirety
-by the Board,
-and the Board must confirm or deny that declaration.
-If it confirms, the existence of any Rulings under seal
-must be published to the
- <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>
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