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. court costs would not be recoverable, except perhaps by a different 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.
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
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. 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.
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.
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.
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.
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.
I'm not familiar with the term "amicable compounder" I suspect that it may cover the kind of amicable arbitration that we are trying to establish, but I can't be sure of that.
Ec