Checks & Balances in EOS Dispute Resolution - or what stops an Arbitrator going rogue?
I keep getting asked - what stops an Arbitrator going rogue? I admit this is a bemusing question, as often enough it’s asked by someone who's used to an internet attack model, which isn't really common in the world of dispute resolution, but there you have it. An open and full reply is probably good for all. 翻译
EOS dispute resolution is built on the principle of checks & balances. There are many of these. So many it is unlikely that you will ever see a rogue Arbitrator. I’ve seen 2 possible accusations out of 500 cases, so I’m comfortable it is a rare thing. But, when it happens, it tends to scare people. A response, a system, a method is therefore wise.
Nine Checks & Balances
0/ Before an Arbitrator gets to take on a case, he or she goes through a gruelling process - interview, selection, training, working on trial cases, etc. The purpose of this process is twofold: to help the Arbitrator learn our process, and to search for people who have good judgement. This is not a normal skill. You and I and the next person probably don’t have it, just by statistical circumstances. We have to do a lot of work to find these people.
1/ Before you ever get to see the results, the forum of dispute resolution talks internally. Points of facts, law and orders are debated. The Arbitrator will seek help from peers and advisors. According to the rules, the Arbitrator can insist on expert help. A ruling is not generally created in the deep dark swamp of one person’s mind - it’s created in the broad savannah of the forum’s best abilities. However, all of this help remains advice - the Arbitrator is in charge and listens to the advice at his or her choice.
2/ The case file is the record of all that goes on. Everything goes in it. So if there is a problem, it will be found in the case file.
3/ The process of dispute resolution is one that has been laid out over centuries. Case is established, then appoint the Arbitrator. Establishing the facts. Apply the logic and the laws of the community and elsewhere if useful. Create the orders to resolve the dispute.
These rails are hard iron and the Arbitrator is trained to follow them. The case file records the process, of course.
4/ Next, perhaps the biggest check of all, is that the ruling is published. You and everyone gets to read the ruling. It’s right there in front of you. It needs to explain the parties, the claim, the facts as found, the logic and the orders.
If it doesn’t make sense to you, then you might grumble - but it is not as if orders are secret or opaque. The order has to be clear because the parties have to follow it. And the Arbitrator remains in the hotseat to explain the order.
5/ There is appeal. To the appeal forum written into the rules, which establishes your right to request an appeal.
And also to the state courts, because the nature of arbitration is that you always have a right to appeal and ask for a ruling to be overturned. Note that this latter is generally quite tight, for reasons that your lawyer will explain.
6/ Next. A ruling generates reputation. It has the name of the Arbitrator on it. This alone ensures that the Arbitrator does his or her best to ensure the ruling is complete, logical, and reasonable. Of course, some rulings will go wrong. An occasional ruling will spark a crisis. But that’s just the nature of the business of resolving disputes - in any dispute one person is wrong, and that person isn’t going to be happy. Wise reviewers look at all the rulings, and expect one loser per ruling.
7/ A Further Control - the parties can decline to follow the order. In which case they are in default. Now what happens next is difficult to predict because it depends on circumstances, but let us imagine that the ruling has a defect of seriousness.
In that case, the BPs may decline to enforce the order. This is Most Serious! Because the BPs are the first among equals - they are the ones that enforce the code, the Constitution, and all such good things on the community. If the BPs feel so outraged that they were to stare off the forum, and the forum was so adamant as to stare off the BPs, then we would have a stand-off - and when two of the powers are in disagreement we have constitutional crisis. That would have to be resolved by the community.
Either, again remembering that this is very difficult to predict in advance, the community would respond by:
- passing a referendum to back the BPs and/or changing the Constitution to reflect a better judgement and/or seeking to remove the Arbitrator (see below), OR,
- the community would remove sufficient BPs to back up the ruling.
Or, it would remain in deadlock, in which case, both sides would have to negotiate.
8/ Finally, in our rules of dispute resolution there are mechanisms to deal with the rogue Arbitrator. It happens, however very rarely, because humans are humans, and we wouldn’t have it any other way.
The system is currently designed to feed cases to Arbitrators that are at a matching level. No point in handing a constitutional crisis to an Arbitrator first day on the job, just as there is not much point in handing a speeding ticket to the most experienced. This is a very soft control, but it can also be used to manage caseload to an Arbitrator who is making difficult decisions in a particular area.
9/ A harder control is impeachment. In the rules, and two of the forum, the community and the BPs can remove the Arbitrator. It is not up to ECAF alone to make this decision, because otherwise the forum might become a guild, self-empowered and untouchable. A request to remove has to be ratified by either the BPs or the Community. And the BPs and the Community can also remove together, thus overriding the forum entirely.
One house might become confused, even corrupt, but two?
In the event...
Those above are brief summary of the checks and balances against rogue arbitrators. You can see it is way in excess of any other controls over any other actor in the community. But any system is only as strong as its members, human or programmed, so we do well to question more.
What’s right or wrong about this picture? What’s right is that it is little different from any other forum of dispute resolution around the world. So, we’re using the experience that’s been developed over the ages.
What’s wrong? Someday somehow a rogue Arbitrator will turn up. This is far more unlikely than say a rogue BP or a rogue whale or a rogue developer. But it will happen - the point here is that a healthy forum, and healthy community and healthy BPs, will be able to use the above checks & balances to resolve the question. Or it’s an entirely new thing in which case flexibility will be called for. For which we have no guidelines, as it is unpredictable.