cannot detach from its connection with the nation-state, how will it uphold
expectations (regardless of disappointment) in a globalised society?
These are the fundamental questions related to sovereignty as the source of
justification of dispute resolution. At the end of the chapter I will provide some
preliminary answers to these. Before that, it is necessary to understand the
concrete ways in which sovereignty affects the operations of the legal system and
to find the fundamental function behind adopting this principle as a constitutive
justificatory concept. These concrete examples of sovereignty in dispute resolution relate to territorial jurisdiction as the basis of international procedural law
and to the state’s monopoly on violence, from which the state’s monopoly on
dispute resolution is derived. Against these concrete courses of action, the irritant
nature of technology once again becomes apparent.
The concept of territorial jurisdiction, which is ultimately based on sovereignty,
is a fundamental concept of procedural law. Based on this principle, the state has
almost unlimited power on its own soil, but the effects of a state’s legal system
are very limited on the soil of another state. Although this conceptualisation
preserves the interests of a sovereign state, it also creates obstacles for the
functioning of law when two or more state legal systems overlap. In order to
promote commerce and interaction, effective solutions for cooperation are necessary. However, it follows from sovereignty that a state can expand its effects
outside its own territory only with the consent of the state in whose territory the
effect takes place. By giving consent to procedural acts of foreign states, a
state expands its own sovereignty beyond its territory. This happens reciprocally.
The trade-off insists on allowing similar acts of another state on the territory of
the first state.
43
International procedural law has followed this principle of sovereignty, as
granting effect to foreign judgments is most often created by international
multilateral Conventions.
44 Such Conventions have been drafted for all stages of
litigation, from recognition of foreign documents and service of documents to
taking of evidence, legal aid for aliens and civil procedure.
45
This connects with the Hobbesian state of nature and the question of the state
of nature between sovereign states. For Hobbes the state of nature between
different sovereign states translates into a vacuum of coherent power, a normative
no-mans-land, where the power of no single sovereign reaches in. The internal
aspect of sovereignty, namely the responsibility to provide effective dispute
resolution for its citizens, has up until now been sufficiently provided for by
local territorial methods and by such relatively insignificant consent-based methods
as lex mercatoria for cross-border situations.
46 However, in the era of online
dispute resolution (ODR), individual citizens increasingly access this external
normative space through e-commerce and by other cross-border communication
actions, which all of a sudden change the sovereign’s responsibilities. In order to
carry out its internal responsibility and to provide for upholding its internal
sovereignty in relation to its citizens, the sovereign should be able to extend its
power to the external, but this would infringe the sovereignty of other states.
Without effective cooperation the sovereigns all fail in their internal duties, as
118 Three quests for justification
expectations (regardless of disappointment) in a globalised society?
These are the fundamental questions related to sovereignty as the source of
justification of dispute resolution. At the end of the chapter I will provide some
preliminary answers to these. Before that, it is necessary to understand the
concrete ways in which sovereignty affects the operations of the legal system and
to find the fundamental function behind adopting this principle as a constitutive
justificatory concept. These concrete examples of sovereignty in dispute resolution relate to territorial jurisdiction as the basis of international procedural law
and to the state’s monopoly on violence, from which the state’s monopoly on
dispute resolution is derived. Against these concrete courses of action, the irritant
nature of technology once again becomes apparent.
The concept of territorial jurisdiction, which is ultimately based on sovereignty,
is a fundamental concept of procedural law. Based on this principle, the state has
almost unlimited power on its own soil, but the effects of a state’s legal system
are very limited on the soil of another state. Although this conceptualisation
preserves the interests of a sovereign state, it also creates obstacles for the
functioning of law when two or more state legal systems overlap. In order to
promote commerce and interaction, effective solutions for cooperation are necessary. However, it follows from sovereignty that a state can expand its effects
outside its own territory only with the consent of the state in whose territory the
effect takes place. By giving consent to procedural acts of foreign states, a
state expands its own sovereignty beyond its territory. This happens reciprocally.
The trade-off insists on allowing similar acts of another state on the territory of
the first state.
43
International procedural law has followed this principle of sovereignty, as
granting effect to foreign judgments is most often created by international
multilateral Conventions.
44 Such Conventions have been drafted for all stages of
litigation, from recognition of foreign documents and service of documents to
taking of evidence, legal aid for aliens and civil procedure.
45
This connects with the Hobbesian state of nature and the question of the state
of nature between sovereign states. For Hobbes the state of nature between
different sovereign states translates into a vacuum of coherent power, a normative
no-mans-land, where the power of no single sovereign reaches in. The internal
aspect of sovereignty, namely the responsibility to provide effective dispute
resolution for its citizens, has up until now been sufficiently provided for by
local territorial methods and by such relatively insignificant consent-based methods
as lex mercatoria for cross-border situations.
46 However, in the era of online
dispute resolution (ODR), individual citizens increasingly access this external
normative space through e-commerce and by other cross-border communication
actions, which all of a sudden change the sovereign’s responsibilities. In order to
carry out its internal responsibility and to provide for upholding its internal
sovereignty in relation to its citizens, the sovereign should be able to extend its
power to the external, but this would infringe the sovereignty of other states.
Without effective cooperation the sovereigns all fail in their internal duties, as
118 Three quests for justification