technology). The question remains, what is the role of state agenda in dispute
resolution, if sovereignty loses its primary role as a source of justification?
Discarding sovereignty as a source of justification for dispute resolution does
not mean that we have to abandon the principle itself. As Mutanen states, other
suggested terms of constitutional theory, such as autonomy or independence,
come with different difficulties and reinterpretation of sovereignty, as constitutional pluralism is a more apt choice for constitutional law.
77 However, the point
I make here is not about the theory, history, application or dominance of the
principle as a description of either de jure or de facto state from internal or
external perspective. Instead, the demand for abandoning sovereignty is significantly
more limited here, contextually.
Finding the justification of dispute resolution in state sovereignty has been very
much a silent practice and the connection is difficult to find in constitutional texts
or even codes of civil procedure. This silence of legislative work does not mean
that it does not exist, as I established earlier. It is this particular practice of
justifying dispute resolution through a reference to the political system that is
problematic. However, this does not mean that sovereign states should have no
interest or no business in dispute resolution. Simply put, the source of justification needs to be re-evaluated in the context of both states and other stakeholders,
the limitations of the cross-border context, and the objective of providing
efficient redress mechanisms.
As Castells and Mutanen point out, nation-states or the concept of sovereignty
are not disappearing or losing their influence. Neither is the public function of
dispute resolution in providing predictability of legal decisions, transparency,
equality and societal stability. The importance of this public function needs to
be emphasised: the role of the state as one of the basic building blocks of
democratic societies and global community is first and foremost linked to these
objectives.
Private enforcement, which bypasses state control, is challenging the traditional
doctrine of cross-border procedural law. Still, private enforcement is currently a
relatively small phenomenon, although it is gaining ground. However, private
enforcement challenges and undermines the state’s monopoly on violence. The
question is how to reconcile the state’s interests in upholding the public function
of dispute resolution while simultaneously providing efficient mechanisms for
enforcement, both public and private.
Sovereignty alone does not provide sufficient theoretical justification for dispute
resolution, nor does the practical framework derived from it provide sufficient
means of reacting to the phenomenon of private enforcement. In other words,
sovereignty alone is not enough, but the sovereign states have impact on the
matter of both justification and practice. It remains to be seen whether this impact
is actually tapped into and transformed into a regulatory standard for private
enforcement. Considering the failure of UNCITRAL’s Working Group, it is
becoming increasingly apparent that the network of states alone cannot provide
sufficient tools, but creating standards for private enforcement needs to include the
whole variety of stakeholders.
134 Three quests for justification
resolution, if sovereignty loses its primary role as a source of justification?
Discarding sovereignty as a source of justification for dispute resolution does
not mean that we have to abandon the principle itself. As Mutanen states, other
suggested terms of constitutional theory, such as autonomy or independence,
come with different difficulties and reinterpretation of sovereignty, as constitutional pluralism is a more apt choice for constitutional law.
77 However, the point
I make here is not about the theory, history, application or dominance of the
principle as a description of either de jure or de facto state from internal or
external perspective. Instead, the demand for abandoning sovereignty is significantly
more limited here, contextually.
Finding the justification of dispute resolution in state sovereignty has been very
much a silent practice and the connection is difficult to find in constitutional texts
or even codes of civil procedure. This silence of legislative work does not mean
that it does not exist, as I established earlier. It is this particular practice of
justifying dispute resolution through a reference to the political system that is
problematic. However, this does not mean that sovereign states should have no
interest or no business in dispute resolution. Simply put, the source of justification needs to be re-evaluated in the context of both states and other stakeholders,
the limitations of the cross-border context, and the objective of providing
efficient redress mechanisms.
As Castells and Mutanen point out, nation-states or the concept of sovereignty
are not disappearing or losing their influence. Neither is the public function of
dispute resolution in providing predictability of legal decisions, transparency,
equality and societal stability. The importance of this public function needs to
be emphasised: the role of the state as one of the basic building blocks of
democratic societies and global community is first and foremost linked to these
objectives.
Private enforcement, which bypasses state control, is challenging the traditional
doctrine of cross-border procedural law. Still, private enforcement is currently a
relatively small phenomenon, although it is gaining ground. However, private
enforcement challenges and undermines the state’s monopoly on violence. The
question is how to reconcile the state’s interests in upholding the public function
of dispute resolution while simultaneously providing efficient mechanisms for
enforcement, both public and private.
Sovereignty alone does not provide sufficient theoretical justification for dispute
resolution, nor does the practical framework derived from it provide sufficient
means of reacting to the phenomenon of private enforcement. In other words,
sovereignty alone is not enough, but the sovereign states have impact on the
matter of both justification and practice. It remains to be seen whether this impact
is actually tapped into and transformed into a regulatory standard for private
enforcement. Considering the failure of UNCITRAL’s Working Group, it is
becoming increasingly apparent that the network of states alone cannot provide
sufficient tools, but creating standards for private enforcement needs to include the
whole variety of stakeholders.
134 Three quests for justification