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Member's FAQ on Arbitration
Why do we have Arbitration?
We use Arbitration to solve problems that cannot be solved by policies and procedures: liabilities in certificate use, arguments about the best way to do things, interpretations of policies, oversight of tricky procedures, authorisation for emergency action.
Why does it say in CCA that I might find myself in Arbitration?
For example, if you misuse your certificate, or someone else misuses the certificate, then this misuse can be resolved in Arbitration.
But, can't the courts do that?
Yes, in theory, but in practice they are too expensive. Also, they don't generally know enough about certificates and other Internet matters, and they don't work well over borders. CAcert assurances and actions are mostly across borders, and chasing some bad guy across a border isn't going to be worth your while in most cases.
It all sounds too serious for an Internet Community
Yes, it does. The difference is Audit. Audit requires seriousness, it requires that we act at a level of professionalism comparable to businesses.
Can I be forced into Arbitration?
Yes, as a member, if this clause is triggered form CCA:
- "...all disputes arising out of or in connection to our use of CAcert
services shall be referred..."
So there is a definite connection to CAcert required first.
What about for other things?
For something outside that above clause, you generally cannot be forced.
You can voluntarily agree, but there are some limitations on that, like below:
So CAcert Arbitration can be used for ANYTHING???
Yes, in theory. But in practice, the Arbitrator will likely have less patience for something outside the Community. As with all of us, the Arbitrator is a volunteer. He isn't going to help you to sue an investment bank to save on court costs...
The line seems very vague!
Yes, and deliberately so. The problem with drawing a firm line is that we'll leave too much stuff outside. Many of the important cases so far have been unpredictable, and would likely have been blocked because they weren't on a list that said "this is OK, this not."
Instead, the vague line is judged by the Arbitrator each time the case comes in. He solves more problems for us this way.
That gives the Arbitrator too much power! Surely he will abuse it?
The intention is to hand the whole problem over to the Arbitrator, in part because we already showed (you and I and everyone else) that we can't resolve it. It is written in DRP that he has the full faith and confidence of all the Community to deal. So, it is true that an Arbitrator can abuse the situation.
But, the Arbitrator does not work in a vacuum: he works with a Case Manager to watch the details, he is constrained by the policies and the laws (like we all are), there is an appeal, and finally, his rulings are public.
The sum of all these things is that he will also be working his best to resolve the situation for all our interests.
I know of a flaw, I know my local judge will knock it down!
Actually there are many "flaws" in Arbitration, and dispute resolution of any form is full of flaws. Dispute resolution is all about dealing with stuff that cannot be organised in advance. There are always unexpected twists and complications, which is perhaps why court dramas make good TV.
And yes, your local judge might not be happy. According to each country's Arbitration Act, you might be able to get an Arbitration stopped or a ruling overturned.
But: Arbitration works *because we agree to do this together*. In this way, we solve the problems without the courts. Even if you do manage to get your particular case knocked down, for the other 99 cases, we all win, because we can probably do those cases for the cost of your case.
So, the question isn't whether you know of a secret backdoor, it is really whether you agree to use this process, or not.
How did all this start?
Arbitration was introduced to solve problems uncovered in Audit. An original and primary need is to deal with liabilities that occur in the use of certificates.
For example, if you as a member rely on my name being John Smith, and later on it turns out to be false, you may have lost because of that. With CAcert, you can file into Arbitration against me, and an Arbitrator can potentially award you damages. (This might happen, but it isn't guaranteed.)
That way, CAcert can say, "when reliance goes wrong, here's the solution: Arbitration." This is important for a number of reasons, chiefly that audit requires strong disclosure of liabilities, and our community makeup requires a fair deal for you and the rest of us once we've disclosed the ugly truth: certificates are about risk.
The Arbitrator is an amateur, he doesn't know the law!
We don't use trained lawyers for our Arbitrators. Instead, we pick expert members who know our business, and have shown good judgement. Our Arbitrator does know the policies and practices of CAcert. Disputes in CAcert generally refer to the things that our Arbitrator does know about.
It seems you use Arbitration too much, much more than "audit & liabilities & certificates"
Yes, much much more. As it turns out, Arbitration helps us in a whole lot of other things: 4 eyes and dual control oversight in difficult security cases, providing clean authorisation in an emergency, replacing the inaccessible "Australian Mediation" system for the Association, resolving arguments about the "right" way to do things, etc etc.
One of the great benefits of Arbitration is that it keeps our policies to around half the size they would need to be. Whenever they come across a difficult area, instead of writing a bureaucratic list of things that are allowed or disallowed, they simply kick the problem to Arbitration. So those things that rarely happen don't need to be documented up front. When they do happen, an Arbitrator can document them on the spot, with real information.
It seems silly to use Arbitration for a Name change
Yes, it is a bit extreme. The Arbitrators and the Assurance team are researching ways to better handle these "administrative" things. Indeed, that is a hidden benefit of Arbitration: when we see too many cases like that, we know we have to develop a better way.
I've heard Arbitration has a bad reputation
That's true in part. The bad reputation seems to come from big companies using rigged Arbitration to squash their customers, especially finance companies in the anglo world. The big clues are: private and confidential process, Arbitrators chosen by the company not by some independent means, and expensive Arbitrators. So when you go and sue your insurance company, you find yourself locked in a private room, with an Arbitrator that you pay for, but the company chooses. Bad recipe. Oh, and you aren't allowed to tell anyone!
My lawyer says that Arbitration is a bad deal for me
Lawyers tend to hate Arbitration. One reason might be that they don't make good fees in Arbitration.
Our disputes are all community, low cost issues, so we can't afford to keep your lawyer happy. Indeed, in our Arbitration, the DRP says that the Arbitrator will appoint a Senior Assurer to help you. Another volunteer.
I don't like losing my rights!
You are not really losing any rights. You are simply transferring the rights from your local courts to our Arbitration. That can be a good deal if our Arbitrators know the topic more, and are cheaper and fairer.
Another way to think of this is to imagine you are inside the community.
- When each new member comes in, you aren't having your rights being
transferred into a strange court in a far away land. Your rights are preserved within CAcert's Arbitration.