International Commons Courts

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A proposal by Janelle Orsi of SELC:

“International Commons Courts (ICCs) will facilitate the emergence of international commons-based organizations and networks by ensuring "accessible, low-cost means for dispute resolution," which commons scholar Elinor Ostrom identified as a key element of successful commons. Organizations and their participants would, by contract, voluntarily consent to resolving certain disputes through specified arbitration and/or mediation processes administered by an organization acting as an ICC. While the International Chamber of Commerce International Court of Arbitration and similar bodies serve this function for cross-border commercial activities, commons-based activities will be better served by specialized dispute resolution systems that operate with different sets of ethics and logic. Courts of law and conventional arbitrators in capitalist economies are expensive to utilize and they are far too willing to view the assets of the commons as commodities that can be partitioned and sold, at the expense of the social, cultural, moral, ecological underpinnings of commons. For example, the resolution of disputes in state courts has been blamed for the partial unraveling of commons-based systems for managing irrigation systems ("acequias") in New Mexico. For this reason, commons everywhere would benefit from the development of Local Commons Courts.

However, for the purpose of growing commons at an international scale, an agreed-upon system of alternative dispute resolution is preferable to using local court systems, the procedures and laws for which vary greatly. While local court procedures and applicable laws vary, courts all over the world will often enforce 1) an agreement to submit a dispute to arbitration, and 2) the final ruling from the arbitration process. This means that a local court may be more likely to enforce a decision by an ICC, even if the local court would not have come to the same decision under its own laws and procedures. 

In addition to a Commons Court's own mediation and arbitration rules and procedures (click here for examples of conventional international arbitration and mediation procedures), the parties to any agreement could specify alternate procedures and certain goals or values to be considered during the arbitration process. For example, an agreement could specify that an arbitrator, when weighing various factors into a balancing test, should tip the balance in a way that favors and benefits members of a historically disenfranchised community.

To give an example of how an ICC may be used: If a New Zealand-based organization licenses software to a U.S.-based organization under the condition that the U.S. organization remains a cooperative, and if the U.S. organization is later purchased by investors and transformed into a profit-maximizing venture, then the New Zealand organization could enforce a revocation of the license through the binding arbitration process. While there is risk that a conventional court may view the license agreement as imposing an unreasonable restraint on the alienation of the company's assets, an ICC would understand the intent behind such a restriction and the goals of ensuring that the use of the software benefit the commons.” (email, January 2016)

A suggested way forward

Janelle Orsi:

“1) Start with a set of mediation and arbitration rules like the ones I linked to and start marking them up with commentary about what might be different if they were re-written with a commons mindset. 

2) Look for scholarship on the commons and on how disputes get resolved in a variety of settings (probably Ostrom has written about this?), and look for commonalities that set those approaches apart from systems of resolution in capitalist legal systems. Perhaps those commonalities could be translated into basic principles that could be applied on an international scale? For example, I'm two-thirds of the way through Sanjay Bavikatte's excellent book, Stewarding the Earth, which identifies common values/priorities that can be observed in indigenous communities and how they manage assets. He boils it down to: householding, reciprocity, and redistribution, which he sort of reframes and rephrases as "sufficiency, sharing, and caring." If the goal of the commons is to ensure more equitable distribution of resources, based on a shared notion of what is "sufficient," and to cultivate natural cultures of caring, then how do you translate that into principles that can be enforced by arbitrators when the system breaks down? 

Given the many other Ostrom principles that point to the need for decisions to be made by or as close as possible to the people those decisions impact, then it's possible that the role of a Commons Court may be to inquire deeply into a community's values and customary ways of resolving disputes, and, rather than make a decision to resolve the dispute, the Court may simply decide what procedure the community itself should use to resolve it, thereby "remanding" the decision back to the community along with a specific instructions to, say, hold a community forum, or appoint a jury of community members, or put the outcome to a vote of members, calling on them to decide based on a sense of fairness...” (email January 2016)