X-Git-Url: https://code.wpia.club/?p=gigi.git;a=blobdiff_plain;f=static%2Fwww%2Fpolicy%2FDisputeResolutionPolicy.html;fp=static%2Fwww%2Fpolicy%2FDisputeResolutionPolicy.html;h=0000000000000000000000000000000000000000;hp=2082bb04dd90122213078db2588135b61755754b;hb=5f5fe0a79718e39b8982fcfa9e3878a8517d10f6;hpb=5ff16bf1cd44c001f134e3eabfb30ecd6e78c08c diff --git a/static/www/policy/DisputeResolutionPolicy.html b/static/www/policy/DisputeResolutionPolicy.html deleted file mode 100644 index 2082bb04..00000000 --- a/static/www/policy/DisputeResolutionPolicy.html +++ /dev/null @@ -1,794 +0,0 @@ - - - - - - Dispute Resulution Policy - - - - - - - -

- - - - - - -

- Name: DRP COD7
- Status: POLICY m20070919.3
- DRAFT p20110108 p20121213
- Editor: Teus Hagen -
- Licence: CC-by-sa+DRP

- -

- - -

Dispute Resolution Policy

- -

0. Introduction

- -

-This is the Dispute Resolution Policy -for CAcert -for the CAcert Community, consisting of CAcert Inc and Members who agree to the CAcert Community Agreement (CCA). -Disputes arising out of -operations by CAcert -Inc -and interactions between - -Members - -may be addressed through this policy. -This document also presents the rules for -resolution of disputes. -

- -

0.1 Nature of Disputes

- -

-Disputes include: -

- -

- Requests for non-routine support actions. - CAcert support team has no authority to - act outside the normal support facilities made - available to - - Members; - -
- Classical disputes where a Member or another - assert claims and demand remedies; -
- Requests by external organisations, including - legal processes from foreign courts; -
- Events initiated for training purposes. -

- -

1. Filing

- -

1.1 Filing Party

-Anyone may file a dispute. -In filing, they become Claimants. -

- -

1.2 Channel for Filing

- -

-Disputes are filed by being sent to the normal -support channel of CAcert, -and a fee may be payable. -

- -

-Such fees as are imposed on filing will be specified -on the dispute resolution page of the website. -

- -

1.3 Case Manager

-The Case Manager (CM) takes control of the filing. -

- -

- CM makes an initial determination as - to whether this filing is a dispute - for resolution, or it is a request - for routine support. -
- CM logs the case and establishes such - documentation and communications support as is customary. -
- If any party acts immediately on the filing - (such as an urgent security action), - the CM names these parties to the case. -
- CM selects the Arbitrator. -

- -

-The personnel within the CAcert support team -are Case Managers, by default, or as directed -by the Dispute Resolution Officer (DRO). -

- -

1.4 Contents

-The filing must specify: -

- -

- The filing party(s), being the Claimant(s). -
- The party(s) to whom the complaint is addressed to, - being the Respondent(s). - This will be CAcert in the - case of requests for support actions. - It may be a Member (possibly unidentified) in the - case where one Member has given rise to a complaint against another. -
- The Complaint. - For example, a trademark has been infringed, - privacy has been breached, - or a Member has defrauded using a certificate. -
- The action(s) requested by the filing party - (technically, called the relief). - For example, to delete an account, - to revoke a certificate, or to stop a - trademark infringement. -

- -

-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. -

- -

1.5 The Arbitrator

- -

-The Case Manager selects the Arbitrator according -to the mechanism managed by the -DRO -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." -

- -

-Arbitrators are experienced Assurers of CAcert. -They should be independent and impartial, including -of CAcert Inc. itself where it becomes a party. -

- -

2. The Arbitration

- - -

2.1 Authority

- -

-The Board of CAcert Inc. and the - -Members of the Community - - vest in Arbitrators -full authority to hear disputes and deliver rulings -which are binding on CAcert Inc. and the - -Members. - -

- - -

2.2 Preliminaries

- -

-The Arbitrator conducts some preliminaries: -

- -

- The Arbitrator reviews the available documentation - and affirms the rules of dispute resolution. - Jurisdiction is established, see below. -
- 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 Inc. and other parties - remain under the governing law. -
- 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. -
- Any parties that are not - - Members - - and are not bound by the - CPS CCA - are given the opportunity to enter into - CAcert and be bound by the - CPS CCA - and these rules of arbitration. - If - - these Non-Related Persons (NRPs) - remain outside, - their rights and remedies under CAcert's policies - and forum are strictly limited to - that those - specified in the - Non-Related Persons -- Disclaimer and Licence Root Distribution License. - NRPs - may proceed with Arbitration subject to preliminary orders - of the Arbitrator. -
- Participating - - Members - - may not resign - - from the Community - - until the completion of the case. -
- The Arbitrator confirms that all parties accept - the forum of dispute resolution. - This is especially important where a - - Member - - 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. -
- 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, - they must declare such, including any changes. -
- The Arbitrator may appoint experienced Assurers - to assist and represent parties, especially for NRPs. - The Case Manager must not provide such assistance. -
- The Arbitrator is bound to maintain the balance - of legal fairness. -
- The Arbitrator may make any preliminary orders, - including protection orders and orders referring - to emergency actions already taken. -
- The Arbitrator may request any written pleadings, - counterclaims, and/or statements of defence. -

- - -

2.3 Jurisdiction

- -

-Jurisdiction - the right or power to hear and rule on -disputes - is initially established by clauses in the - -CAcert Community Agreement. - -The agreement must establish: -

- -

- That all Parties agree to binding Arbitration - in CAcert's forum of dispute resolution; -
- for all disputes relating to activities within - CAcert, issued certificates, roles and actions, etc; -
- as defined by these rules, including the selection - of a single Arbitrator; -
- under the Law of NSW, Australia; and -
- the Parties keep email accounts in good working order. -

- -

-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: -

- -

- 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; -
- criminal actions or actions likely to result in criminal - proceedings, - e.g., fraud; -
- Contracts between - - Members - - that were formed without - a clause to seek arbitration in the forum; -
- Areas where laws fall outside the Arbitration Act, - such as privacy; -
- Legal process (subpoenas, etc) delivered by - an external court of "competent jurisdiction." -

- -

-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. -

- -

2.4 Basis in Law

- -

-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 - - Members - -users of CAcert, -you agree to resolve -all disputes before CAcert's forum. -This is sometimes called private law -or alternative dispute resolution. -

- -

-As a matter of public policy, courts will generally -refer any case back to Arbitration. - - Members - -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. -

- - -

2.5 External Courts

- -

- 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 Claimant. - 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). -

- -

- 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 - - Members, - - then jurisdiction more normally falls within the forum. - If the Arbitrator rules to reject, - he should do so only after consulting with CAcert Inc. counsel. - The Arbitrator's jurisidiction is ordinarily that of - dealing with the order, and - not that which the external court has claimed to. -

- - -

2.6 Process

- -

-The Arbitrator follows the procedure: -

- - -

- Establish the facts. - The Arbitrator collects the evidence from the parties. - The Arbitrator may order CAcert Inc. or - - Members - - under jurisdiction to provide support or information. - The Arbitrator may use email, phone or face-to-face - meetings as proceedings. -
- 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 - - Members - - , and the community as a whole. - The Arbitrator may - - seek - - any assistance. -
- Makes a considered Ruling. -

- -

3. The Ruling

- -

3.1 The Contents

- -

-The Arbitrator records: -

- -

- The Identification of the Parties, -
- The Facts, -
- The logic of the rules and law, -
- The directions and actions to be taken by each party - (the ruling). -
- The date and place that the ruling is rendered. -

- - -

3.2 Process

-Once the Ruling is delivered, the case is closed. -The Case Manager is responsible for recording the -Ruling, publishing it, and advising Members. -

- -

-Proceedings are ordinarily private. -The Ruling is ordinarily published, -within the bounds of the Privacy Policy. -The Ruling is written in English. -

- -

-Only under exceptional circumstances can the -Arbitrator declare the Ruling private under seal. -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 - - Members - -in a timely manner -(within days). -

- -

3.3 Binding and Final

- -

-The Ruling is - -ordinarily final and binding -binding and final -on CAcert Inc. and all - - Members - -. -Ordinarily, all - - Members - - agree to be bound by this dispute -resolution policy. - - Members - -must declare in the Preliminaries -any default in agreement or binding. -

- -

-If a person who is not a - - Member - -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. -

- -

3.4 Review for Appeal (DRAFT p20110108) Re-opening the Case or Appeal

- -

-In the event case of clear injustices, egregious behaviour or -unconscionable Rulings, - -a review may be requested by filing a dispute (DRAFT p20110108). - - -parties may seek to re-open the -case by filing a dispute. - -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. -

- -

- -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) - - -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. - -

- -

3.5 Liability

- -

-All liability of the Arbitrator for any act in -connection with deciding a dispute is excluded -by all parties, provided such act does not constitute -an intentional breach of duty. -All liability of the Arbitrators, CAcert Inc., its officers and its -employees (including Case Manager) -for any other act or omission in connection with -arbitration proceedings is excluded, provided such acts do not -constitute an intentional or grossly negligent breach of duty. -

- -

-The above provisions may only be overridden by -appeal process - (by means of a new dispute causing referral to the Board). - -

- -

3.6 Remedies

- -

-The Arbitrator generally instructs using internal remedies, -that is ones that are within the general domain of -CAcert -the Community, -but there are some external remedies at his disposal. -He may rule and instruct any of the parties on these issues. -

- -

- "community service" typically including -
- - attend and assure people at trade shows / open source gatherings, -
- - writing documentation -
- - serve in a role - support, dispute arbitration -
- or others as decided. - -
- Fined by loss of assurance points, which may result - in losing Assurer or Assured status. - -
- Retraining in role. - -
- Revoking of any certificates. - -
- Monetary fine up to the liability cap established for - each party as described in the - - CAcert Community Agreement. - - -
- Exclusion from community. - -
- Reporting to applicable authorities. - -
- Changes to policies and procedures. - -

- -

-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. - -

- -

4. Appendix

- - -

4.1 The Advantages of this Forum

-The advantage of this process for - - Members - - is: -

- -

- CAcert and Members operate across many jurisdictions. - Arbitration allows us to select a single set of - rules across all jurisdictions. -
- 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. -
- This forum allows CAcert Members to look after themselves - in a community, without exposing each other to potentially - disastrous results in strange courts from foreign lands. -
- By volunteering to resolve things "in-house" the costs - are reduced. -
- 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. -
- CAcert Assurers can develop the understanding and the rules - for sorting out own problems far better than courts or - other external agencies. -

- -

4.2 The Disadvantages of this Forum

- -

-Some disadvantages exist. -

- -

- Members 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. - - -
- Members may feel overwhelmed by the formality - of the process. - It is kept formal so as to establish good and proper - authority to act; otherwise, support and other - people in power may act without thought and with - damaging consequences. -
- 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. -

- -

4.3 Process and Flow

- -

-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. -

- -

-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. -

- -

-Note also that many elements of legal proceedings are -deliberately left out of the rules. -

- - - -