a case-by-case approach. Cross-border low-intensity cases create discrepancies in
the application of territorial jurisdiction, as multiple courts can claim jurisdiction
simultaneously or individual cases may be left without a court of jurisdiction. The
emergence of these case types may threaten the function of upholding expectations,
as it is unclear where the dispute should be resolved.
The challenges of privatisation through technology actualise in law’s function
of upholding expectations but, in addition, they extend further to the structures
of law, to the idea of state sovereignty as the source of dispute resolution. The
traditional ideal model does not provide a solution for deciding the court of
jurisdiction, nor does it provide an access to court for low-intensity cases arising
from the Internet. The traditional model applies only when a decision is enforced
through the state’s monopoly. The difficulty here is that the content of due
process depends on the decision on jurisdiction: two positions of the triangle,
sovereignty (which state?) and due process (whose standards?) depend on which
state, if any, claims the jurisdiction.
Thirdly, private enforcement mechanisms make enforcement of contractual
decisions a matter of technological infrastructure and contractual relationship,
bypassing the authoritative violence provided by the state. As stated, private
enforcement contests the monopoly of violence granted to the nation-state.
The disruptive element of private enforcement can be downplayed by considering
it as a contractual issue. Enforcement, regardless of its conductor, derives justification for the use of coercion from the decision itself. Private enforcement could be
considered sanctioned by the existence of a decision, just by the mere form of the
decision, the fact that there is a decision that will be enforcement, as opposed to
mere use of violence without a form. However, this argument falls short, as it
would mean describing private enforcement as a sui generis forum agreement.
This interpretation, however, would lead to a plethora of follow-up problems.
Private enforcement has a deconstructive meaning within the legal sphere. This
significance cannot be downplayed by the traditional ideal model, as shown
before. Also Pollicino and Bassini admit that enforcement is a problem for
transnational law due to the structural limits.
7 Hence, private enforcement
challenges the concept of state sovereignty in a similar way as disintegration of
territorial jurisdiction, which is to be expected as the two phenomena are closely
connected.
In the end, the issue behind all these new interpretative challenges of dispute
resolution is that of regulation. Should we provide a regulatory framework for
ODR or for private enforcement, or should we ban them? If we want to restrict
their use or bring them back into the family fold of regulation, how would we
institute such a regulatory regime?
This step takes us out of the frying pan into the fire. By asking about
regulating private enforcement we are on dangerous ground, as the question of
bringing due process to private dispute resolution suddenly becomes a question
of legitimacy of any dispute resolution. We are no longer asking what makes a
good technology-enhanced dispute resolution procedure, but instead we end up
seeking the source of due process, the foundation of dispute resolution.
94 Three quests for justification
the application of territorial jurisdiction, as multiple courts can claim jurisdiction
simultaneously or individual cases may be left without a court of jurisdiction. The
emergence of these case types may threaten the function of upholding expectations,
as it is unclear where the dispute should be resolved.
The challenges of privatisation through technology actualise in law’s function
of upholding expectations but, in addition, they extend further to the structures
of law, to the idea of state sovereignty as the source of dispute resolution. The
traditional ideal model does not provide a solution for deciding the court of
jurisdiction, nor does it provide an access to court for low-intensity cases arising
from the Internet. The traditional model applies only when a decision is enforced
through the state’s monopoly. The difficulty here is that the content of due
process depends on the decision on jurisdiction: two positions of the triangle,
sovereignty (which state?) and due process (whose standards?) depend on which
state, if any, claims the jurisdiction.
Thirdly, private enforcement mechanisms make enforcement of contractual
decisions a matter of technological infrastructure and contractual relationship,
bypassing the authoritative violence provided by the state. As stated, private
enforcement contests the monopoly of violence granted to the nation-state.
The disruptive element of private enforcement can be downplayed by considering
it as a contractual issue. Enforcement, regardless of its conductor, derives justification for the use of coercion from the decision itself. Private enforcement could be
considered sanctioned by the existence of a decision, just by the mere form of the
decision, the fact that there is a decision that will be enforcement, as opposed to
mere use of violence without a form. However, this argument falls short, as it
would mean describing private enforcement as a sui generis forum agreement.
This interpretation, however, would lead to a plethora of follow-up problems.
Private enforcement has a deconstructive meaning within the legal sphere. This
significance cannot be downplayed by the traditional ideal model, as shown
before. Also Pollicino and Bassini admit that enforcement is a problem for
transnational law due to the structural limits.
7 Hence, private enforcement
challenges the concept of state sovereignty in a similar way as disintegration of
territorial jurisdiction, which is to be expected as the two phenomena are closely
connected.
In the end, the issue behind all these new interpretative challenges of dispute
resolution is that of regulation. Should we provide a regulatory framework for
ODR or for private enforcement, or should we ban them? If we want to restrict
their use or bring them back into the family fold of regulation, how would we
institute such a regulatory regime?
This step takes us out of the frying pan into the fire. By asking about
regulating private enforcement we are on dangerous ground, as the question of
bringing due process to private dispute resolution suddenly becomes a question
of legitimacy of any dispute resolution. We are no longer asking what makes a
good technology-enhanced dispute resolution procedure, but instead we end up
seeking the source of due process, the foundation of dispute resolution.
94 Three quests for justification