[WikiEN-l] Wikiquette "committee"

Tue Oct 7 14:28:23 UTC 2003

From: "Ray Saintonge" <saintonge at telus.net>
> 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.

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