individuals’ actions would not be tied to the nation-state, but dispute resolution
for disputes arising from these actions is.
As is apparent, there are several links between the Hobbesian sovereign and the
way in which state sovereignty is interpreted in cross-border procedural law. Both
perceive sovereignty as a binary concept, including the external and the internal
aspect. External sovereignty protects the sovereign from the intervention of other
sovereigns and simultaneously limits the sovereign’s actions towards other sovereigns. In the external relation the state’s scope of power is limited to inaction.
However, no such instruments of procedural law have been created to answer
the new types of dispute arising online. Instead, ODR schemes are promoted by
private operators and, increasingly, are also receiving public support, e.g. from
the EU and UNCITRAL. Although there has been public and legislative support
for ODR and the issue has existed for 20 years, the conventional (!) mechanism
has not been applied to battle the difficulties of online disputes.
47
Internet disputes are particularly difficult, as they are typically based on an
online low-value transaction between geographically distant parties, who are
previously unknown to each other. It could be claimed that ODR has
the potential to replace state litigation as the mainstream. However, increasing
state interest in regulating online disputes could very well lead to convergence of
state litigation and ODR, which could be the solution for the justificatory crisis
caused by private enforcement.
Before asking what the state’s role in future dispute resolution technology will
be, we need to understand the connection between state-governed litigation and
justification. The legal system has historically derived justification for its functioning from the state machine, from the system of politics.
This justification has two forms in dispute resolution. First, the link between
law and politics forms the basis of territorial jurisdiction. This is the foundation of
internal cooperation that takes place in multilateral Conventions. Second, the
state agenda in the legal system is upheld by the concept of state monopoly on
dispute resolution. This is the other side of territorial jurisdiction as well as an
embodiment of the state’s monopoly on violence. As territorial jurisdiction is
directed externally against other states to avoid interventions from them, state
monopoly on dispute resolution reflects on its own citizens. State monopoly
means that the state governs access to enforcement and grants it solely to
decisions validated by the state courts. In this, state monopoly on dispute
resolution is simply another aspect of its monopoly on violence. In order to
maintain its power basis of exclusionary right to violence,
48 the state provides and
has to provide, in its turn, effective means of dispute resolution.
Both the external and internal aspects are connected to the state’s responsibility to provide protection as its ultimate raison d’être. The external state
monopoly protects citizens against the arbitrariness of foreign legislation and
self-serving jurisdictions, while the internal monopoly prevents vigilantism. In
order to maintain its monopoly on violence, the state must perform its task of
providing legal protection effectively – namely, it must provide effective dispute
resolution models for its citizens’ disputes. A failure to provide such models
Sovereignty and state agenda 119
for disputes arising from these actions is.
As is apparent, there are several links between the Hobbesian sovereign and the
way in which state sovereignty is interpreted in cross-border procedural law. Both
perceive sovereignty as a binary concept, including the external and the internal
aspect. External sovereignty protects the sovereign from the intervention of other
sovereigns and simultaneously limits the sovereign’s actions towards other sovereigns. In the external relation the state’s scope of power is limited to inaction.
However, no such instruments of procedural law have been created to answer
the new types of dispute arising online. Instead, ODR schemes are promoted by
private operators and, increasingly, are also receiving public support, e.g. from
the EU and UNCITRAL. Although there has been public and legislative support
for ODR and the issue has existed for 20 years, the conventional (!) mechanism
has not been applied to battle the difficulties of online disputes.
47
Internet disputes are particularly difficult, as they are typically based on an
online low-value transaction between geographically distant parties, who are
previously unknown to each other. It could be claimed that ODR has
the potential to replace state litigation as the mainstream. However, increasing
state interest in regulating online disputes could very well lead to convergence of
state litigation and ODR, which could be the solution for the justificatory crisis
caused by private enforcement.
Before asking what the state’s role in future dispute resolution technology will
be, we need to understand the connection between state-governed litigation and
justification. The legal system has historically derived justification for its functioning from the state machine, from the system of politics.
This justification has two forms in dispute resolution. First, the link between
law and politics forms the basis of territorial jurisdiction. This is the foundation of
internal cooperation that takes place in multilateral Conventions. Second, the
state agenda in the legal system is upheld by the concept of state monopoly on
dispute resolution. This is the other side of territorial jurisdiction as well as an
embodiment of the state’s monopoly on violence. As territorial jurisdiction is
directed externally against other states to avoid interventions from them, state
monopoly on dispute resolution reflects on its own citizens. State monopoly
means that the state governs access to enforcement and grants it solely to
decisions validated by the state courts. In this, state monopoly on dispute
resolution is simply another aspect of its monopoly on violence. In order to
maintain its power basis of exclusionary right to violence,
48 the state provides and
has to provide, in its turn, effective means of dispute resolution.
Both the external and internal aspects are connected to the state’s responsibility to provide protection as its ultimate raison d’être. The external state
monopoly protects citizens against the arbitrariness of foreign legislation and
self-serving jurisdictions, while the internal monopoly prevents vigilantism. In
order to maintain its monopoly on violence, the state must perform its task of
providing legal protection effectively – namely, it must provide effective dispute
resolution models for its citizens’ disputes. A failure to provide such models
Sovereignty and state agenda 119