Open BazaarGuard opened 8 years ago
The user warned that not doing this could expose the moderator to lawsuits from dissatisfied parties.
Another user pointed out that some territories do not allow parties to waive their right to a trial through a contract.
Another user argued that a court is very unlikely to overturn an arbitration agreement.
@esquiremod: I think the New York convention will create more problems than it could potentially resolve. It adds a whole new set of complex rules and won't do anything to keep moderators out of court. No matter what is agreed to, parties can still go to their local courts to sue. The mod would then need to appear in local court to make his NY Conv. argument and hope it stands up. I don't think local judges in 3rd world countries are going to pay heed to some UN agreement they've never heard of. I don't think the theft charge issue is realistic concern, and if it is, the NY Conv. isn't going to do anything about it.
@drwasho:
I don't think local judges in 3rd world countries are going to pay heed to some UN agreement they've never heard of.
The US is a signatory of that convention, as are >160 countries (from memory)... this isn't an esoteric treaty, but a major agreement that forces local jurisdictions to comply with the outcomes private arbitration
@esquiremod: I agree. But you need to consider how these things play out logistically. Here is a hypo: US Buyer purchases a T-shirt from Brazillian Vendor. Buyer isn't happy so he has a moderator decide. The UK-based Moderator sides with Vendor. Buyer, still not happy, sues Vendor and Mod in Brazillian court (US Court has no jurisdiction). Mod wants to rely on UN treaty. Now what? Mod will need to appear in Brazillian court to request dismissal. Buyer argues that he didn't agree to UN treaty. So, Mod is still stuck in Brazillian court arguing his position. Treaty is of no practical help.
@drwasho:
Buyer argues that he didn't agree to UN treaty.
This is key. So there's something missing in Moderation right now: terms of service We just have an About page Which is crap One of the changes I've earmarked for a future release is that when you select a Moderator, both parties have to agree to their ToS (Vendor agrees when they select, Buyer agrees when they select during purchasing)
@esquiremod: Even if Buyer agrees on OB, nothing prevents him from suing and nothing changes in the above hypo. I can walk into my local court tomorrow and file a lawsuit against Dr. Washo for medical malpractice. If I'm somehow able to serve you, it is up to you to come and defend the suit. If you don't I get a default judgment against you.
@drwasho: I'm not a legal expert, but I think if a private arbitration agreement is made between the parties (and Moderator), it is automatically protected by the treaty, provided that it doesn't trigger a defense (https://en.wikipedia.org/wiki/Convention_on_the_Recognition_and_Enforcement_of_Foreign_Arbitral_Awards)
From what I have been told, most of the court cases is trying to penetrate one of those defenses, not invalidate the applicability of the treaty itself
@esquiremod: The problem with the NY conv. is that it puts the onus on the moderator to defend himself. On the other hand, if you do as I suggested, the only risk is the theft allegation [first user] suggested. However, there the onus is on the government to come after you. No government is going to extradite someone for an OB purchase gone foul. (edited)
You say "automatically", but, again, consider the logistics. There is nothing automatic about it. If you get sued, you'll have to appear to raise it as a defense and hope the court agrees.
@drwasho: Like I said, it's optional for Moderators who want to craft ToS agreements in sync with the treaty
A user on OpenBazaar Slack suggested that private arbitration must be legally binding according to the New York Convention.