## 05.09.2015 AK
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 [[ArbitrationPractices/CZ|česky]] | '''english'''
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== Intro ==
This document describes some working practices and ''work-in-progress'' rules for incorporation into future policy.

=== Other Documentation ===
CAcert resolves disputes through the [[http://www.cacert.org/policy/DisputeResolutionPolicy.php|Dispute resolution Policy (DRP)]] which includes the rules of Arbitration.  DRP overrules this present one.

For a nice introduction to CAcert's forum, see the [[AssuranceHandbook2#head-d6eacd8cadb2e9e198f73c8750cb720764aca302|Handbook]].  Case Management is described in the [[http://svn.cacert.org/CAcert/Arbitration/arbitration_case_manager.html|Case Manager's Handbook]].

== Practices ==
=== Conflicts where Forum members are named in Arbitration ===
Where a person named in an Arbitration is also a member of the Arbitration Forum, this represents an advantage to that person, as the member may see information that is openly discussed relevant to the case.  As the Arbitrator is charged with preserving the balance, he may decide to:

 1. unsubscribe the Member temporarily from the Forum
 1. constrain the Member from commenting on any information
 1. forward the relevant comments seen on the Arbitration Forum to the other named parties
 1. constrain the Member from using the information so seen in the Arbitration
 1. or some other mechanism...

This is an evolving practice...

=== Forum members named in only one role ===
Members of the forum may be named as Arbitrators, or as Case Managers, or as parties to a case, but may never combine these roles in a single case.

=== Access to information ===
An Arbitrator may request any information stored by CAcert which relates to an active case. An (email) request specifying the needed information and its relevance to the case should be sent to support.

=== Support email as a single point of failure ===
Filing a dispute is currently done by emailing support.  When support is unable to process the emails, there is a failure, and it will clearly impact the legal standing and strength of Arbitration.

We need a way to make the Support email not a single point of failure.  Thoughts?

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=== Differences between Common-Law and Civil-Law ===
CAcert has adopted the common-law tradition of Australia. However as an international organization, many participants in arbitrations have currently and in future will have their origins in countries with civil-law traditions. As there are several differences between these traditions I have taken it upon myself to expound on these differences. Please think of these words not as coming from "the sage of law" but rather from "the imbecile at the law". Therefore corrections, ammendments and denunciations are most welcome.

Regards, PhilippDunkel

{{{
Within the western world there are two principal legal systems: the common law system, as practiced in the anglo-american world, and the civil law system, as practiced in continental europe. The two systems while endowed with many similarities have a few important philosophical differences which it is this paper's intent to explore.

The first important and principal difference is the origin of law. In the civil law system, laws are made or constructed, while in the common law system, laws have always been such and are simply explained. While in practice there is little difference, since in both systems laws are passed by a legislative body, the difference is quite important in both how these laws are constructed and how they are made to apply. In order to contrast and compare the two systems it seems prudent to investigate each in sequence before doing so.

The civil law systems postulates the origin of laws as decree by authority. Where that authority originates depends on the period of history. These days, parliaments or other democratic legislatures are attributed as the authority to create laws. Where exactly they obtained that authority remains largely unexplained. Usually it derives by inheritance from earlier times, where this was a prerogative of monarchs. These monarchs derived their authority to create law from divine pleasure, an origin that can well be disputed. Wherever the origin may be derived from, laws are created, fundamentally.

As laws are created, they ultimately have to stand on their own and be sufficient unto themselves. This explains their construction quite easily. In civil law systems, laws have to be constructed in a way that their applicability can be judged without fail and without the need for interpretation. For this reason, civil law norms are constructed in the prescribed way of listing a number of conditions under which the norm applies, followed by a number of consequences that take force if and only if the conditions apply.

Due to the fact that civil law norms must be sufficient unto themselves, the conditions specified in the norm must necessarily be specific. This leads to norms or laws that leave little room for interpretation. For this reason the modification of norms through jurisprudence is very limited. Usually, judges in in civil law societies will limit themselves to removal of laws that are in violation of superior norms, such as constitutions, and will rarely find themselves creating new norms.

In contrast, common law originates not from the authority granted a legislative body, but rather has always existed. Common law is, as the term suggests common. As such the law has always existed unchanged. What has changed is simply the interpretation of that law. Due to this view it is not the law that has the highest priority but rather justice itself. This origin of the law has a direct consequence in what legal norms will look like.

Legal norms in a common law system are much broader and appear more as principles than those in a civil law system. While they are still built on the same principle of conditions of application and consequences that apply in event the conditions are met, they are nevertheless distinct. Neither the conditions nor the consequences need be constructed with as much precision. This is because the interpretation of what the conditions and consequences mean can and will be determined by jurisprudence.

As such, legislative bodies are not creating law, they are simply providing a newer and more specific interpretation of what has always been the law. The law itself does not change. With this in mind it becomes easier to understand the view taken and described by people such as Thomas Jefferson in writing the U.S. Declaration of Independence. There it states: "When in the Course of human events it becomes necessary..." and "...We hold these truths to be self-evident, that all men are created equal..." The presumption here is that there is a natural law that applies and that the actions taken are just and legal and simply the consequence required by such common law.

From such a view of law, jurisprudence is much freer to modify laws. The courts are charged, much as the legislature, with explaining and clarifying the law that has always existed. While legislatures are charged with clarifying and explaining the laws on general principles, courts are to explain the finer details of the law on a case by case basis.

Taking these interpretations of the distinct legal systems of the western world, the differences in mentality and their consequences become more apparent.
}}}
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 . CategoryArbitration