Summary by Devashish Bharuka
For full version of the excerpt, click here
The author strongly argues for Internet Arbitration through party autonomy. He relies primarily on the application of English Arbitration Act, 1996 and the New York Convention.
Membership to the Internet community is voluntary. Autonomy is a freedom that the Internet Community could have to make its own laws and to set up its own arrangements for dealing with those that did not conform to those laws.
The Law of the Internet could be created by the Internet Community establishing its views on websites and newsgroups. There need be no voting process beyond an acceptance of what was best for the Internet Community from amongst the views expressed.
The Internet Community has to have a means of stopping behaviour that is beyond the pale. There are several stages to "stopping behaviour". Firstly impartially determining that the behaviour is not acceptable under the Laws of the Internet. The next stage is determining what has to be done or what it is that no longer may be done (or both) and by whom in order to put right the not acceptable behaviour. The next stage is to decide what adverse actions are to be taken against those who have been behaving in an unacceptable manner.
The question is how Party Autonomy for the Internet Community can be achieved. Since no state court can enforce action beyond its own state's boundaries, there is no point in seeking a court-based system for Internet regulation. Party Autonomy exploits two laws that have come into existence for reasons quite unconnected with the Internet. These are the Arbitration Act 1996 of England and an international treaty that is shortly called The New York Convention. Central to the laws is Party Autonomy. No serious defects have been found in the English Arbitration Act 1996 and the New York Convention has stood the test of time. These comments are written on the assumption that the New York Convention will stand the test of the Internet.
All those in the Internet Community who wish to enjoy Party Autonomy and an unwritten "Law of the Internet" would need to reach an 'arbitration agreement' (S6). The agreement must be in writing but does not need to be signed. The ideal would be for all those providing internet services at any level and all those using internet services at any level being members of the association. It could be that Internet services would not be provided to those who were not members of the association. If all those in the Internet Community had assented to being members of the association then the arbitration procedures could be used by any member or members against any other member or members of the association even if they be on the other side of the world. It is assumed that such arbitrations would be conducted over the internet by email initially but using video when available.
Members of The Internet Arbitration Association would be required to resolve internet disputes or differences according to The Law of the Internet Arbitration Rules.
The New York Convention appears to work. The courts will enforce foreign
arbitral awards against their own nationals. The local courts have no power
to retry the matter or consider any appeal. It is the international spread
of the New York Convention that makes the enforcement of a Law of the Internet
possible. The Law of the Internet will develop faster under these loose
proposals than any group of law professors could keep up with developing
such a law.