[WikiEN-l] Wikiquette "committee"

Sun Oct 5 16:13:26 UTC 2003

From: "Ray Saintonge" <saintonge at 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