[WikiEN-l] Wikiquette "committee"

Tue Oct 7 07:33:13 UTC 2003

Alex R. wrote:

>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.
>
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