governed by national courts giving in casu content to these norms, the conflict
environment that the national law tries to reduce to a normative code is global,
and thus cannot be simplified to such a code. However, in an information-based
society, there is a need to develop cross-border legal instruments for addressing
such disputes, and this can be reached only by overcoming the restrictions
embedded in the concept of state sovereignty. Regardless, state sovereignty
might hinder access to dispute resolution, but it also retains the task of providing
due process by safeguarding access to enforcement.
67
The discussion on private enforcement shows that the sovereign nation-state is
losing some of its power due to the disruptive power of technology. Still, these
changes in the role of the state are by no means straightforward, as Castells points
out.
68 The implications of this change for dispute resolution are evident in the
justificatory crisis brought on by dispute resolution technology. The state monopoly
seems to be poorly compatible with e-commerce disputes and private enforcement
seems to pass over the state’s monopoly on violence as well. However, the territorial
nation-state has proved to be a long-lasting phenomenon historically and it is still
very much the primary provider of power and administration.
69 No other norm
project has been able to establish itself as strongly as the nation-state, although the
potential for this is increasing. In other words, owing to the globalisation of
economy, the nation-state has lost some of its power, but not its influence.
It seems we cannot rid ourselves of sovereignty, although its role as a source of
justification for dispute resolution technology can be challenged on solid
grounds. As stated at the beginning of this chapter, conflicts involve the diverse
interests of the parties, the public, the market operators and the state. If we
dismiss the sovereign state as the primary source of justification, what will its role
be? Could we still emphasise the role of the state, but simply try to reinterpret its
content? Would such an exercise provide a way of understanding alternative
means of enforcement, and enable maintaining the concept of sovereignty as the
source of justification?
The possibility of reinterpreting sovereignty is desirable, as it would save us the
trouble of finding other sources of justification. For example, we could test
whether understanding sovereignty as delegation would function, or whether
sovereignty as interdependence of States would provide a solution. There are
several options for reinterpretation of sovereignty.
The first option of reinterpretation is to consider private enforcement as a
delegation of power. Seeing private enforcement as a delegation of power from
the sovereign to the e-commerce sites would be a theoretically solid description
and would comply with Hobbesian sovereignty. This model has been applied to
understand the relationship between state litigation and ADR while simultaneously holding on to the constitutive starting point of sovereignty. Then again,
such a description is not entirely accurate, as private enforcement owes more to
the inaction of sovereign states than to pro-active and conscious transfer of
powers. Also, Hobbes’ theory is an ill fit with the reality of globalised world, as
it makes a close connection between the person of the sovereign and the territory
of the state without focusing extensively on the relationship between different
Sovereignty and state agenda 131
environment that the national law tries to reduce to a normative code is global,
and thus cannot be simplified to such a code. However, in an information-based
society, there is a need to develop cross-border legal instruments for addressing
such disputes, and this can be reached only by overcoming the restrictions
embedded in the concept of state sovereignty. Regardless, state sovereignty
might hinder access to dispute resolution, but it also retains the task of providing
due process by safeguarding access to enforcement.
67
The discussion on private enforcement shows that the sovereign nation-state is
losing some of its power due to the disruptive power of technology. Still, these
changes in the role of the state are by no means straightforward, as Castells points
out.
68 The implications of this change for dispute resolution are evident in the
justificatory crisis brought on by dispute resolution technology. The state monopoly
seems to be poorly compatible with e-commerce disputes and private enforcement
seems to pass over the state’s monopoly on violence as well. However, the territorial
nation-state has proved to be a long-lasting phenomenon historically and it is still
very much the primary provider of power and administration.
69 No other norm
project has been able to establish itself as strongly as the nation-state, although the
potential for this is increasing. In other words, owing to the globalisation of
economy, the nation-state has lost some of its power, but not its influence.
It seems we cannot rid ourselves of sovereignty, although its role as a source of
justification for dispute resolution technology can be challenged on solid
grounds. As stated at the beginning of this chapter, conflicts involve the diverse
interests of the parties, the public, the market operators and the state. If we
dismiss the sovereign state as the primary source of justification, what will its role
be? Could we still emphasise the role of the state, but simply try to reinterpret its
content? Would such an exercise provide a way of understanding alternative
means of enforcement, and enable maintaining the concept of sovereignty as the
source of justification?
The possibility of reinterpreting sovereignty is desirable, as it would save us the
trouble of finding other sources of justification. For example, we could test
whether understanding sovereignty as delegation would function, or whether
sovereignty as interdependence of States would provide a solution. There are
several options for reinterpretation of sovereignty.
The first option of reinterpretation is to consider private enforcement as a
delegation of power. Seeing private enforcement as a delegation of power from
the sovereign to the e-commerce sites would be a theoretically solid description
and would comply with Hobbesian sovereignty. This model has been applied to
understand the relationship between state litigation and ADR while simultaneously holding on to the constitutive starting point of sovereignty. Then again,
such a description is not entirely accurate, as private enforcement owes more to
the inaction of sovereign states than to pro-active and conscious transfer of
powers. Also, Hobbes’ theory is an ill fit with the reality of globalised world, as
it makes a close connection between the person of the sovereign and the territory
of the state without focusing extensively on the relationship between different
Sovereignty and state agenda 131