arbitral tribunals has been considered to be its own field of procedural law and
earlier decisions are referenced in future cases in the same way as if they were
precedents.
2 The argument against private dispute resolution’s lack of precedents
would be the claim that precedents do not need to exist within the court-based
judicial system in order to be effective and to induce autopoiesis. This argument
that precedents are not the only way to achieve autopoiesis is also present in the
famous formulation of Mnookin and Kornhauser, who recognised that private
resolution takes place “in the shadow of the law”, mimicking the legal decisions
to the detail.
3 The structure of this second argument differs from the first one, as
it claims that private dispute resolution is the shadow of the public system, its
alter without its own content.
The example of growing institutionalisation of arbitration suggests that judicial
precedents as such are not vital for law’s continued autopoiesis, because continuous
communication can also be achieved by other means. This means that public
precedents are not necessarily vital to law’s existence if replacing techniques are
available. However, the issue has other implications. For example, the discussion on
transparency and other values of democratic society, law’s function of upholding
expectations and the efficiency of policy setting such as consumer protection are
related to public precedents. The lack of public precedents has deconstructive
relevance, as the debate on vanishing trials depicts,
4 but this issue does not connect
with law’s existence or upholding the system/environment boundary. This explains
why the emergence of ADR in the 1980s did not create the need for complete
re-evaluation but could be reconciled through the traditional ideal model.
5 This
does not indicate that values attributed to public precedents have an important role
for law’s function. Also, the question still remains, whether the increase in the
number of non-public ODR decisions poses the problem anew and requires further
thought.
Secondly, technological change creates a mass of cases, which are an ill fit
for the legal system that operates primarily with the concept of nation-statebased jurisdiction. For example, the low-intensity cases that typically arise from
e-commerce are often left outside the litigation threshold for several reasons. One
such reason is the risk of legal expenses, as the legal expenses are likely to exceed
the value of the dispute. When these disputes take place in the cross-border
context, the complexity of litigation increases. Even deciding on the court of
jurisdiction becomes challenging and time-consuming and hence taking disputes
to public courts may not be a de facto option. We could even argue that this new
category of disputes poses a challenge for the national legal systems.
However, Pollicino and Bassini have claimed that the issues of cross-border
Internet cases are only a question of localisation. Cross-border cases arising from
the Internet have been tried and decided in state courts up until now, although
sometimes several courts have announced jurisdiction over the same matter, but
the emergence of geo-localisation tools enables deciphering territorial location
of the dispute and thus removes the earlier challenges for territorial jurisdiction.
6
This argument has its merits, but tools for geo-localisation are not sufficient to
solve the challenge for territorial jurisdiction. Also, Pollicino and Bassini resort to
Heading towards justification 93
earlier decisions are referenced in future cases in the same way as if they were
precedents.
2 The argument against private dispute resolution’s lack of precedents
would be the claim that precedents do not need to exist within the court-based
judicial system in order to be effective and to induce autopoiesis. This argument
that precedents are not the only way to achieve autopoiesis is also present in the
famous formulation of Mnookin and Kornhauser, who recognised that private
resolution takes place “in the shadow of the law”, mimicking the legal decisions
to the detail.
3 The structure of this second argument differs from the first one, as
it claims that private dispute resolution is the shadow of the public system, its
alter without its own content.
The example of growing institutionalisation of arbitration suggests that judicial
precedents as such are not vital for law’s continued autopoiesis, because continuous
communication can also be achieved by other means. This means that public
precedents are not necessarily vital to law’s existence if replacing techniques are
available. However, the issue has other implications. For example, the discussion on
transparency and other values of democratic society, law’s function of upholding
expectations and the efficiency of policy setting such as consumer protection are
related to public precedents. The lack of public precedents has deconstructive
relevance, as the debate on vanishing trials depicts,
4 but this issue does not connect
with law’s existence or upholding the system/environment boundary. This explains
why the emergence of ADR in the 1980s did not create the need for complete
re-evaluation but could be reconciled through the traditional ideal model.
5 This
does not indicate that values attributed to public precedents have an important role
for law’s function. Also, the question still remains, whether the increase in the
number of non-public ODR decisions poses the problem anew and requires further
thought.
Secondly, technological change creates a mass of cases, which are an ill fit
for the legal system that operates primarily with the concept of nation-statebased jurisdiction. For example, the low-intensity cases that typically arise from
e-commerce are often left outside the litigation threshold for several reasons. One
such reason is the risk of legal expenses, as the legal expenses are likely to exceed
the value of the dispute. When these disputes take place in the cross-border
context, the complexity of litigation increases. Even deciding on the court of
jurisdiction becomes challenging and time-consuming and hence taking disputes
to public courts may not be a de facto option. We could even argue that this new
category of disputes poses a challenge for the national legal systems.
However, Pollicino and Bassini have claimed that the issues of cross-border
Internet cases are only a question of localisation. Cross-border cases arising from
the Internet have been tried and decided in state courts up until now, although
sometimes several courts have announced jurisdiction over the same matter, but
the emergence of geo-localisation tools enables deciphering territorial location
of the dispute and thus removes the earlier challenges for territorial jurisdiction.
6
This argument has its merits, but tools for geo-localisation are not sufficient to
solve the challenge for territorial jurisdiction. Also, Pollicino and Bassini resort to
Heading towards justification 93