could lead to a loss of stability and coherence in dispute resolution. This is
because outlawing vigilantism would no longer be effective and it would become
unclear which disputes would be granted access to dispute resolution and
according to which standards they would be resolved.
It should be noted that the monopoly is not historical, nor does it reflect the
reality of dispute resolution. Instead, the monopoly is a conceptual and doctrinal
practice through which we preserve the connection between law and politics.
However, this relationship is experiencing some technical difficulties, so to speak.
These two forms of sovereignty in dispute resolution have led to a point where
the state is unable to resolve the issue of ODR efficiently. This follows from the
reality of online activity, which is often small-scale sale of goods, often across
borders. The cross-border, high-volume and low-value elements of e-commerce
have rendered the threshold of cross-border litigation too high for most consumers
to cross. This is the result of territorial jurisdiction and the state monopoly, which
still form the foundation of procedural law doctrine. The geographical pointers of
national borders are difficult to draw online. Because Internet disputes cannot be
localised to any state’s territorial jurisdictions, no state monopoly may exist and if
one state claims jurisdiction, it violates the other’s right of jurisdiction out of
necessity.
So, if the state monopoly is a conceptual practice but does not correspond with
historical conflict reality, why would it have stopped working at this point? Has
there always been resolution of conflicts in the shadow of the state? And if yes,
why would ODR make any difference? To answer these questions, state monopoly
has to be understood as a given explanation of organising dispute resolution
through the state.
It should be emphasised that I do not claim private dispute resolution to be the
deal-breaker of sovereignty. Historically, private ordering has existed all through
the creation of the nation-state, despite the nation-state. Although the centralised
modern state expanded its power through the introduction of a state monopoly on
conflict resolution, examples of informal community-based methods of conflict
management, settlement talks and mock courts functioning outside the public
dispute resolution system with or without acknowledgement from the central
power can be found in most modern states. Sometimes such informal conflict
management models have also been encouraged by the sovereign.
49
Private dispute resolution is nothing new in itself, but two other developments have rendered the traditional state-based model of enforcement dysfunctional. First, the number of cases left outside the sphere of litigation has
increased significantly as a result of Internet activity. Second, the implementation of technology has changed the content of legal operations, as the ex ante
state control before enforcement can be bypassed through private enforcement.
As a result, it is not simply a change from offline to online worlds of dispute
resolution, or the increase of case load, or the failure of regulating ODR, or the
implementation of technological innovation, but the combination of several
such factors that challenge the state monopoly as a doctrinal explanation of
dispute reality.
120 Three quests for justification
because outlawing vigilantism would no longer be effective and it would become
unclear which disputes would be granted access to dispute resolution and
according to which standards they would be resolved.
It should be noted that the monopoly is not historical, nor does it reflect the
reality of dispute resolution. Instead, the monopoly is a conceptual and doctrinal
practice through which we preserve the connection between law and politics.
However, this relationship is experiencing some technical difficulties, so to speak.
These two forms of sovereignty in dispute resolution have led to a point where
the state is unable to resolve the issue of ODR efficiently. This follows from the
reality of online activity, which is often small-scale sale of goods, often across
borders. The cross-border, high-volume and low-value elements of e-commerce
have rendered the threshold of cross-border litigation too high for most consumers
to cross. This is the result of territorial jurisdiction and the state monopoly, which
still form the foundation of procedural law doctrine. The geographical pointers of
national borders are difficult to draw online. Because Internet disputes cannot be
localised to any state’s territorial jurisdictions, no state monopoly may exist and if
one state claims jurisdiction, it violates the other’s right of jurisdiction out of
necessity.
So, if the state monopoly is a conceptual practice but does not correspond with
historical conflict reality, why would it have stopped working at this point? Has
there always been resolution of conflicts in the shadow of the state? And if yes,
why would ODR make any difference? To answer these questions, state monopoly
has to be understood as a given explanation of organising dispute resolution
through the state.
It should be emphasised that I do not claim private dispute resolution to be the
deal-breaker of sovereignty. Historically, private ordering has existed all through
the creation of the nation-state, despite the nation-state. Although the centralised
modern state expanded its power through the introduction of a state monopoly on
conflict resolution, examples of informal community-based methods of conflict
management, settlement talks and mock courts functioning outside the public
dispute resolution system with or without acknowledgement from the central
power can be found in most modern states. Sometimes such informal conflict
management models have also been encouraged by the sovereign.
49
Private dispute resolution is nothing new in itself, but two other developments have rendered the traditional state-based model of enforcement dysfunctional. First, the number of cases left outside the sphere of litigation has
increased significantly as a result of Internet activity. Second, the implementation of technology has changed the content of legal operations, as the ex ante
state control before enforcement can be bypassed through private enforcement.
As a result, it is not simply a change from offline to online worlds of dispute
resolution, or the increase of case load, or the failure of regulating ODR, or the
implementation of technological innovation, but the combination of several
such factors that challenge the state monopoly as a doctrinal explanation of
dispute reality.
120 Three quests for justification