Arbitration Bill

[Ashcroft Burnham]

[b:kkyaze6w]Arbitration Bill[/b:kkyaze6w]
[i:kkyaze6w]A bill to make provision for binding arbitration of disputes according to the law of the Confederation of Democratic Simulators[/i:kkyaze6w]

1. Any two or more people may enter into a written agreement providing that any disputes between those people of a kind specified in the agreement and capable of being resolved by the law of the Confederation of Democratic Simulators shall be resolved by a process of arbitration specified in that agreement.

2. An agreement of the sort under section 1 above may be entered into in respect of any dispute, whether arising before or after the agreement was entered into.

3. No court shall permit any party to an arbitration agreement to bring any proceedings before the court against another party to that same agreement in relation to any matter on which, in accordance with that agreement, any arbiter has the jurisdiction to determine, and where the matter has not finally been resolved by an arbiter.

4. In any proceedings brought in any court by a party to an arbitration agreement, the court shall be bound to defer to the arbiter's decision on the matter, except where:

(a) the arbitration agreement provides for appeal of an arbiter's decision to a court, and then only in relation to such matters and on such grounds as the arbitration agreement stipulates;

(b) it is found that the arbiter acted outside the jurisdiction conferred upon her or him by the arbitration agreement; or

(c) there was a manifest irregularity in the conduct of the arbitration proceedings such that, in consequence thereof, any party thereto is likely to have suffered substantial injustice.

5. Any reference in this Act to a single arbiter shall be construed as a reference to multiple arbiters where the agreement so provides.

6. No arbitration agreement shall have the effect of excluding any court's jurisdiction in relation to:

(a) impeachment; or

(b) any penal order.

***

The purpose of this Bill is both to provide a workable framework for ADR in the CDS in general (our common law might have adopted the same position by itself, but, in such matters, it is best to spell things out beforehand), and also to enable the simultaneous testing of the two competing models that seem to have dominated our judiciary debate: the full, conventional legal system model that we have adopted, and the informal arbitration model that Beathan prefers.

If we adopt the Arbitration Bill, parties who do not like the idea of using a full legal system can enter into arbitration agreements, and have Beathan (or anyone else) determine their disputes for them. The courts will then be bound by the arbiter's decision provided that the arbiter acted according to the agreement. Parties would be free to agree whatever procedural rules that they like, or leave it up to the arbiter to decide.

Now that we have a judge (and judicial candidates lining up to hand in their applications), procedures, a court, and cases, it would be insane not to give the judiciary on which we have been working for such a long time a chance to prove itself. Similarly, if others propose a different model, if we can test them both at the same time without causing capricious results, we should do so. That will mean that Moon's very sensible idea of an enquiry commission will have real data to work on when considering our judicial system, and will not be reduced to speculating about which one might work the best.

(Incidentally, those who accuse me of being verbose might like to compare this six-clause bill with the UK's 110 section Act on the same subject, [url=http://www.opsi.gov.uk/ACTS/acts1996/19 ... m:kkyaze6w]here[/url:kkyaze6w]).

[Diderot Mirabeau]

I fully support this proposal. As you may notice I actually put a similar idea it into [url=http://forums.neufreistadt.info/viewtop ... 7:14nprvqo]my proposal[/url:14nprvqo] for a common position of the Simplicity Party before your posting of this.

I have at this stage only two suggestions:
1) That arbitration be allowed even in cases where there is no prior agreement to this effect. If the aggrieved party is able to come to terms with the other party about using arbitration they should be entitled to do so.

2) I would prefer the bill to be worded in a language more accessible to ordinary people. I.e. less use of technical legalese terms. See my proposal in the Simplicity Forum for an example of the kind of terms a person whose first language is not English might consider using.

[Ashcroft Burnham]

[quote="Diderot Mirabeau":3488zx94]I fully support this proposal. As you may notice I actually put a similar idea it into [url=http://forums.neufreistadt.info/viewtop ... 7:3488zx94]my proposal[/url:3488zx94] for a common position of the Simplicity Party before your posting of this.

I have at this stage only two suggestions:
1) That arbitration be allowed even in cases where there is no prior agreement to this effect. If the aggrieved party is able to come to terms with the other party about using arbitration they should be entitled to do so.[/quote:3488zx94]

My Bill says:

[quote:3488zx94]2. An agreement of the sort under section 1 above may be entered into in respect of any dispute, whether arising before or after the agreement was entered into.[/quote:3488zx94]

[quote:3488zx94]2) I would prefer the bill to be worded in a language more accessible to ordinary people. I.e. less use of technical legalese terms. See my proposal in the Simplicity Forum for an example of the kind of terms a person whose first language is not English might consider using.[/quote:3488zx94]

Can you pinpoint specific parts of the wording of this Bill that you consider unhelpfully obfuscatory, and suggest plainer, but no less precise, alternatives?

[Beathan]

Stop the presses! Ashcroft and I agree about something. This is an excellent proposal, and I fully support it.

Beathan

[Diderot Mirabeau]

1. Parties to an unresolved dispute may at any time agree to have it arbitrated by one or more persons, who are citizens of the CDS.

2. The parties to the dispute will come to terms with the procedure for reaching a settlement and in case of disagreement the arbitrator(s) will make the final decision.

3. Upon hearing the parties in accordance with the agreed upon procedure the arbitrator(s) will make a decision that will be binding upon the parties.

4. Once the arbitrator(s) has made his decision in the case it can only be appealed to a court if the parties agreed to this in advance or if the appellant can prove that the arbitrator(s) acted outside his remit as given by the agreement between the parties to the arbitration.

5. Impeachment proceedings can not be made the subject of arbitration.

*** Comment: I deliberately took out the requirement to have a written agreement and the exception for penal cases as I do not agree with those.

[Pelanor Eldrich]

'Nuff said.

[Beathan]

Well, I have to say, I like Diderot's proposal, too.

Beathan

[Ashcroft Burnham]

[quote="Diderot Mirabeau":20x5oh69]*** Comment: I deliberately took out the requirement to have a written agreement and the exception for penal cases as I do not agree with those.[/quote:20x5oh69]

Both of those are important features of real-life arbitration, and for good reason. Written agreements ensure that there can be no disagreements about what is ultimately a huge step by any given person in commuting a right to have a disagreement resolved by a court to having it resolved by an arbiter. Requiring a written agreement, especially if we allow a written agreement after the fact, is, in SecondLife, trivially easy - far more so than in the first life.

As for penal orders, arbitration proceedings are not appropriate for such things: one of the central tenets of the principles of arbitration law is that it should be used for private, not public disputes. All real-life arbitration laws confine their scope to civil matters, and exclude the criminal, and for good reason.

Because all that you did is post an alternative, and state that you removed two parts of it because you did not agree with them, there is no clear (or, indeed, [i:20x5oh69]any[/i:20x5oh69]) idea of your reasoning behind the substitute. Why rewrite it at all? What was wrong with my original wording? [i:20x5oh69]Why[/i:20x5oh69] not require written agreements and exclude the penal? What reason suffices to exclude impeachment but not penal orders?

[Oni Jiutai]

Somehow I got landed with attempting to square the circle between the two versions. So there's now a third version.

This Bill enables and regulates arbitration in the CDS

1. Any parties to a dispute, which could be heard by a CDS Court, may agree to resolve their case by arbitration. Parties may also agree in advance that future disputes of a specified sort will be resolved by arbitration rather than a CDS Court.

2. Arbitration may take any form and procedure agreed between the parties.

3. The agreement to arbitrate and the process the arbitration will take must be put in writing by the parties when the agreement is made.

3. Once parties agree to arbitration they and the CDS Courts must treat the arbitration agreement as binding. A court may only reconsider the arbitration if:

(a) The arbiter did not follow the agreed procedure; or

(b) a party can show that they suffered substantial injustice as a result of a serious flaw in the arbitration process.

4. No arbitration agreement may:

(a) Give the arbiter power to banish a party or impose any sanction reserved to a branch of the CDS government, or

(b) Effect any impeachment jurisdiction

5. An arbitration agreement may provide for the result to be appealed to a CDS Court.