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+
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+
+ Dispute Resulution Policy
+
+
+
+
+
+
+
+
+
+
+ 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.
+
+
+
+
+
+ Status: POLICY m20070919.3
+ DRAFT p20110108 p20121213
+ Editor: Teus Hagen +
+ Licence: CC-by-sa+DRP
+