From: "Ray Saintonge" saintonge@telus.net
Alex R. wrote:
From: "Ray Saintonge" saintonge@telus.net
The idea of the panel's decisions being overthrown by an outside court is unrealistic. Such litigation is bound to be expensive, with little chance of recovering costs. Add to this the difficulties involving jurisdiction or bringing witnesses from around the world, and you have an effective deterrent against starting any such suit.
The cost would not be expensive and there are "summary" procedures that allow arbitration awards to be reviewed at very low cost. Reviewing arbitration awards is not a full blown law suit under the laws of most jurisdictions.
Expensive depends on what's involved. For the possible consequences that we have been discussing, of which a lifetime ban would be the most severe, $200 would be expensive. If the action were begun in a U.S.
In NYS the cost for filing is $210.
court costs would not be recoverable, except perhaps by a different
What we call court costs are recoverable. What are not recoverable are legal fees. But someone could easily file a suit "pro se" and would not have legal fees. Of course, if legal fees were included in the arbitration agreement, that would be recoverable. Regarding the costs, someone may be doing it to prove a point, and what is the cost of a plane ticket to Florida. Filing the petition to uphold the arbitration could be done by mail. Only the appearance at the actual hearing would be in person. The petitioner could even hire a lawyer to appear for that one occasion. Someone spending a few thousand dollars to prove a point? Highly likely if they feel they have been wronged.
suit. Would something won in one jurisdiction be necessarily enforceable in another? Probably not. Article I-3 of the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards allows a state to "declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration." British Columbia has so declared, and I doubt that it is alone in that. Wikipedia participation is not commercial in nature.
One way around that is to have a choice of venue clause in the arbitation agreement. Wikipedia could set the arbitration jurisdiction to be in the County Court in St. Petersburg Florida. Thererfore anyone would have to go that court to get the arbitration overturned. That would be prohibitively expensive for the banned user and these jurisdiction/venue provisions are routinely upheld by US courts. If someone goes to a foreign court they might get a decision but only a decision that is made in the "home" jurisdiction of Wikipedia would be binding.
Let's keep in mind that what we are trying to do is establish a technique for dealing with difficult contributors. We have introduced the concepts of mediation and arbitration, but not the entire corpus of world law relating to these. The procedures of several jurisdictions have been mentioned, but only to the extent that some of their ideas might serve as models
Unfortunately the entire corpus of world law relating to arbitration does apply, it is not like copyright law. If someone wants to limit the law that applies then that should be done in a properly drafted arbitration agreement. That is one reason that it needs to be done properly.
Stating over and over that no one is ever going to sue is not a good rational way to deal with the issue and then suddenly find the whole
matter in front
of a judge. It would be much more proactive to prevent the problem before it occurs.
The maxim that it is easier to get forgiveness than to get permission should always be considered. This is really a question of risk analysis. Trying to cover every possible eventuality isn't cost effective. Considering the probability of a suit is perfectly rational.
The probability of knowing if someone will sue is _unknown_. No one can ever predict that. It is not "trying to cover every possible eventuality" it is just being reasonably prepared. Why is it not cost effective? What is the cost? I don't see any cost involved. It is just a matter of good sense to organize it in a way that minimizes any potential exposure to the courts. That is what I am suggesting, keeping out of the courts. Thinking that you can ignore the legal systems that are out there is naive.
Once you have determined that the probability is low, and that opportunities for rectification may be available, so what if it ends up in court.
So what? If you could have taken fairly simple and straightforward steps either to make sure any arbital award is upheld in court or is only enforceable in a certain court, then you have minimized the cost of dealing with this problem. I for one would not want Wikimedia donations to go to pay the cost of some litigator $300 per hour for 50 hours to defend a petition to vacate an arbitration award when it could have been avoided by some simple straightforward policies that could have been easily understood by non-legally trained individuals.
Regarding jurisdiction I don't think it is difficult to contemplate that
the
jurisdiction is anywhere anyone who is involved in the case may be
(unless
we clearly create a juridiction locus in the "contract" between users
(and
don not assume one already exists, it just needs to be codified).
Perhaps it's better not to create such a locus when doing so would only make life easier for the potential complainant. Also the absence of consideration could be a basis for questioning any such contract.
Absence of consideration? How can you say that? Of course there is consideration in the contract between any contributor and Wikipedia.
Thre is a bargained for exchange. You get to use Wikipedia and make contributions Wikipedia gets to release your contributions over the internet. Consideration is a bit of an old fashioned idea. Remember in civil law systems the concept of consideration has never been recognized and that in most common law systems there are lots of ways around this "conisderation" problem. There are all kinds of estoppel arguments that could be used. Anyway the terms of use of an internet site have been upheld as being enforceable. You present the site and allow individuals to use it. It is a two way bargain, definitely a contract. Money does not have to exchange hands for there to be a contract.
Regarding witnesses, usually they are not necessary in an arbitration. There is a writen record (it will be created by email, IM files, and wikipages). It is this record that will be presented to a court of
competent
jurisdiction (as opposed to exclusive jurisdiction). In other words reviewing arbitration proceedings is often a type of "appeal" procedure, it is based on the record of the arbitration, though the scope of appeal is often limited
I can appreciate this point
I question the relevance of the mass of French law that you presented.
It was also presesnted with US law; by reading these laws in comparison you can see that there are underlying similarities. Even in civil law countries arbitration is dealt with in the same manner. This is to show that the principles are the same and can be applied across jurisdictions. It is not a complex jumble of conflicting laws, it was a system that has been used in ancient Roman times, by the "law merchant" and in internatinonal trade contracts. Arbitration is one of the most settled areas of law that there is because of that history.
There are always going to be ways that arbitration can be appealed, especially if it is done in a manner that is contrary to the principles of
fundamental
justice.
Of course, but nobody is suggesting that we ignore fundamental justice.
That is all I have been suggesting. Create a simple straightforward system of arbitration in line with the principles of fundamental justice or due process or fairness (different names in different contexts for essentially the same thing), make the arbitration hard to appeal or overturn by limiting these rights by agreement and that will make the decisions of the committee final.
Alex756