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.
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.
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).
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 (see art. Article 1484 of the French code de procedure civile:
Where, following the distinctions drawn under Article 1482, the parties have renounced to a right of appeal, or where they have not expressly provided for this right in the arbitration agreement, a review to vacate an instrument termed arbitral award may nevertheless be brought albeit contrary stipulations to the same. The same shall lie in the following cases:
1° where the arbitrator has ruled upon the matter without an arbitration agreement or where this agreement is null or has lapsed;
2° where the arbitration tribunal has been unlawfully constituted or a sole arbitrator unlawfully appointed;
3° where the arbitrator has ruled upon the matter contrary to the assignment given to him;
4° where the adversarial principle has not been respected;
5° in cases of nullity as referred to under Article 1480;
6° where the arbitrator has acted in contravention of a rule of public interest.
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.
I should point out that in France arbitration appeals are broadly entertained under article 1482: The arbitral award shall be appealable save where the parties have renounced to an appeal in the arbitration agreement. However, it is not open to appeal where the arbitrator has been appointed as an amicable compounder, save where the parties have expressly provided for this right in the arbitration agreement.
This is not true in a lot of other jurisdictions were the review of arbital awards are based upon something similar to the rule expressed in art. 1482, see for example the rules in NYS under art. 75 of the CPLR (Civil Practice Law and Rules) (too long to reproduce here). http://assembly.state.ny.us/leg/?cl=16&a=55
Alex756