or regional regulation is a plausible option but too limited in scope to solve the
difficulties arising from cross-border transactions, as it is limited to the state’s
territory. Leaving ODR unregulated would mean that only national material norms
of e-commerce sites would provide safeguards to individuals in ODR procedures
and this would overlook the procedural element of their dispute resolution function. We would have to admit that regulating this new and significant field of
dispute resolution is too difficult. This dead end reveals something vital. The
traditional way of understanding dispute resolution through sovereignty is unable
to answer the challenge imposed by ODR and private enforcement mechanisms.
5.2.3 What’s wrong with sovereignty?
The concept of sovereignty is a risky business. The concept has proved to be
especially long-lived, inclusive to the point of losing its descriptive force and
subject to continuing reinterpretations. The principle has received its share of
criticism but still forms the basis of our understanding on law and society.
The question that needs to be asked is, to what extent can we understand
different types of enforcement, of use of force, through the concept of sovereignty.
Sovereignty functions as the coupling between law and politics of a nation-state,
meaning that it is the basis of understanding litigation. Hence, it justifies the way
in which enforcement is conducted through the state’s monopoly on violence.
Also, voluntary compliance with a decision, i.e. when the losing party makes a
voluntary payment, bypasses the use of force entirely. Voluntary compliance does
not engage the monopoly on violence, and therefore it is partly left outside the
logic of enforcement. This also means that compliance with a decision is not
coercion and therefore it does not challenge the state’s enforcement monopoly.
Instead, voluntary compliance is seen as belonging to the individual’s freedom of
contract, the sphere belonging beyond the state’s interests as long as there is no
foul play involved. Therefore, sovereignty as a source of justifying dispute resolution does not explain the coercive element in forcing voluntary compliance and
neither is there a need for such an explanation. Voluntary compliance is qualified
under freedom of contract and hence it poses no challenge or threat.
However, other models of enforcement do not necessarily fall as easily to the
logic of sovereignty. Still, can the problem be solved inside the logic of sovereignty
by similar means, as is the case with voluntary compliance? Chargebacks provided
by credit card companies, direct enforcement through ICANN, internal private
enforcement of e-commerce sites such as eBay and other enforcement mechanisms
may also be qualified as belonging to the sphere of private autonomy as they are
basically contractual relations or networks of such relations. However, they differ
significantly from voluntary compliance, as the use of force is engaged. Ignoring
these alternative ways of enforcement by contractual qualification is not a credible
solution, because they tap into use of force and use of force needs to be justified
from the perspective of the legal system.
At present, the nation-states have been unable to reach a consensus on
controlling ODR. This inability to establish a new multilateral Convention does
Sovereignty and state agenda 129
difficulties arising from cross-border transactions, as it is limited to the state’s
territory. Leaving ODR unregulated would mean that only national material norms
of e-commerce sites would provide safeguards to individuals in ODR procedures
and this would overlook the procedural element of their dispute resolution function. We would have to admit that regulating this new and significant field of
dispute resolution is too difficult. This dead end reveals something vital. The
traditional way of understanding dispute resolution through sovereignty is unable
to answer the challenge imposed by ODR and private enforcement mechanisms.
5.2.3 What’s wrong with sovereignty?
The concept of sovereignty is a risky business. The concept has proved to be
especially long-lived, inclusive to the point of losing its descriptive force and
subject to continuing reinterpretations. The principle has received its share of
criticism but still forms the basis of our understanding on law and society.
The question that needs to be asked is, to what extent can we understand
different types of enforcement, of use of force, through the concept of sovereignty.
Sovereignty functions as the coupling between law and politics of a nation-state,
meaning that it is the basis of understanding litigation. Hence, it justifies the way
in which enforcement is conducted through the state’s monopoly on violence.
Also, voluntary compliance with a decision, i.e. when the losing party makes a
voluntary payment, bypasses the use of force entirely. Voluntary compliance does
not engage the monopoly on violence, and therefore it is partly left outside the
logic of enforcement. This also means that compliance with a decision is not
coercion and therefore it does not challenge the state’s enforcement monopoly.
Instead, voluntary compliance is seen as belonging to the individual’s freedom of
contract, the sphere belonging beyond the state’s interests as long as there is no
foul play involved. Therefore, sovereignty as a source of justifying dispute resolution does not explain the coercive element in forcing voluntary compliance and
neither is there a need for such an explanation. Voluntary compliance is qualified
under freedom of contract and hence it poses no challenge or threat.
However, other models of enforcement do not necessarily fall as easily to the
logic of sovereignty. Still, can the problem be solved inside the logic of sovereignty
by similar means, as is the case with voluntary compliance? Chargebacks provided
by credit card companies, direct enforcement through ICANN, internal private
enforcement of e-commerce sites such as eBay and other enforcement mechanisms
may also be qualified as belonging to the sphere of private autonomy as they are
basically contractual relations or networks of such relations. However, they differ
significantly from voluntary compliance, as the use of force is engaged. Ignoring
these alternative ways of enforcement by contractual qualification is not a credible
solution, because they tap into use of force and use of force needs to be justified
from the perspective of the legal system.
At present, the nation-states have been unable to reach a consensus on
controlling ODR. This inability to establish a new multilateral Convention does
Sovereignty and state agenda 129