6 Then again, Kurkela and Turunen argue that arbitration is not entirely private, the
same argument Hörnle later repeats. See M Kurkela S Turunen, Due Process in
International Commercial Arbitration (2nd edn, Oxford University Press 2010).
7 J Hörnle, Cross-Border Internet Dispute Resolution (Cambridge University Press
2009) 70.
8 The figure of speech is much used in ADR literature. RH Mnookin and L Kornhauser,
‘Bargaining in the Shadow of the Law: The Case of Divorce Dispute Resolution’
(1979) 88 Yale Law Journal 950. However, it is unclear to which extent the legal
framework actually influence settlements. See M Moffit, ‘Three Things to Be Against
(“Settlement” Not Included)’ (2009) 78 Fordham Law Review 1203, 1207. Moffit
refers to empirical studies on how neighbourhood disputes between farmers and
ranchers and fraud cases are settled, i.e. in these cases there are seldom references to
legal merits or legal entitlements. On shadow of the law in ODR, e.g., Arno R. Lodder
and J. Zeleznikow, ‘Enhanced dispute resolution through the use of information
technology’ (Cambridge University Press cop. 2010), 11.
9 This social function portrays an image of a legal dispute as more multifaceted
phenomenon than a simple prisoner’s dilemma or a strife between neighbours. By
emphasizing the public elements and the inherent complexity of ownership of disputes, we are able to avoid the oversimplification of regarding disputes as conflicts
between two equal rational actors. Owen Fiss’ critique of privatisation of justice
departs from similar viewpoint. See O Fiss, ‘Against Settlement’ (1984) 93 Yale Law
Journal 1073, 1076.
10 For the origins of the word and its relation to social change see, Stéphane Beaulac,
‘The Social Power of Bodin’s “Sovereignty” and International Law’ (2003) 4 Melbourne Journal of International Law 1, 2.
11 Anu Mutanen, Towards a Pluralistic Constitutional Understanding of State Sovereignty
in the European Union? The Concept, Regulation and Constitutional Practice of
Sovereignty in Finland and Certain Other EU Member States (Anu Mutanen &
Hansaprint 2015) 7–8.
12 Encyclopaedia Britannica, ‘Sovereignty’
vulgar Latin ‘superanus’ meaning ‘above’ through the French word ‘souveraineté’.
13 K Tuori, Critical Legal Positivism (Ashgate 2002) 22.
14 ‘Sovereignty, it should be clear, sometimes subsumes – and conceals – important values.
It is used to express the essential quality of a State, the basic entity, abstract but real, of
the international political systems. It is used to describe the autonomy of States and the
need for State consent to make law and build institutions. Sovereignty is used to justify
and define “privacy” of States, their political independence and territorial integrity, their
right and the rights of their peoples to be let alone and to go their own way. However,
sovereignty has also spun a mythology of State grandeur and aggrandizement that
misconceives the concept and clouds what is authentic and worth in it – a mythology
that is often empty and sometimes destructive of human values.’ See, Louis Henkin,
‘The Mythology of Sovereignty’ in Ronald St John MacDonald (ed), Essays in Honour
of Wang Tieya (Martinus Nijhoff Publishers 1994) 351.
15 Mutanen (n 11) 387. Similarly, Castells makes observations of the persistence of nationstates in the globalised modern world. See M Castells, The Power of Identity. The
Information Age: Economy, Society, and Culture Volume II (2nd edn, Wiley-Blackwell
2010).
16 Michel Foucault, The History of Sexuality Volume 1: An Introduction (Robert Hurley
tr, Pantheon Books 1978) 90–93.
17 ‘La souveraineté est la puissance absolue et perpetuelle d’une Republique.’ Jean Bodin,
Les Six Livres de La République (Gérard Mairet ed, Librairie générale française
1993) 74.
136 Three quests for justification
same argument Hörnle later repeats. See M Kurkela S Turunen, Due Process in
International Commercial Arbitration (2nd edn, Oxford University Press 2010).
7 J Hörnle, Cross-Border Internet Dispute Resolution (Cambridge University Press
2009) 70.
8 The figure of speech is much used in ADR literature. RH Mnookin and L Kornhauser,
‘Bargaining in the Shadow of the Law: The Case of Divorce Dispute Resolution’
(1979) 88 Yale Law Journal 950. However, it is unclear to which extent the legal
framework actually influence settlements. See M Moffit, ‘Three Things to Be Against
(“Settlement” Not Included)’ (2009) 78 Fordham Law Review 1203, 1207. Moffit
refers to empirical studies on how neighbourhood disputes between farmers and
ranchers and fraud cases are settled, i.e. in these cases there are seldom references to
legal merits or legal entitlements. On shadow of the law in ODR, e.g., Arno R. Lodder
and J. Zeleznikow, ‘Enhanced dispute resolution through the use of information
technology’ (Cambridge University Press cop. 2010), 11.
9 This social function portrays an image of a legal dispute as more multifaceted
phenomenon than a simple prisoner’s dilemma or a strife between neighbours. By
emphasizing the public elements and the inherent complexity of ownership of disputes, we are able to avoid the oversimplification of regarding disputes as conflicts
between two equal rational actors. Owen Fiss’ critique of privatisation of justice
departs from similar viewpoint. See O Fiss, ‘Against Settlement’ (1984) 93 Yale Law
Journal 1073, 1076.
10 For the origins of the word and its relation to social change see, Stéphane Beaulac,
‘The Social Power of Bodin’s “Sovereignty” and International Law’ (2003) 4 Melbourne Journal of International Law 1, 2.
11 Anu Mutanen, Towards a Pluralistic Constitutional Understanding of State Sovereignty
in the European Union? The Concept, Regulation and Constitutional Practice of
Sovereignty in Finland and Certain Other EU Member States (Anu Mutanen &
Hansaprint 2015) 7–8.
12 Encyclopaedia Britannica, ‘Sovereignty’
vulgar Latin ‘superanus’ meaning ‘above’ through the French word ‘souveraineté’.
13 K Tuori, Critical Legal Positivism (Ashgate 2002) 22.
14 ‘Sovereignty, it should be clear, sometimes subsumes – and conceals – important values.
It is used to express the essential quality of a State, the basic entity, abstract but real, of
the international political systems. It is used to describe the autonomy of States and the
need for State consent to make law and build institutions. Sovereignty is used to justify
and define “privacy” of States, their political independence and territorial integrity, their
right and the rights of their peoples to be let alone and to go their own way. However,
sovereignty has also spun a mythology of State grandeur and aggrandizement that
misconceives the concept and clouds what is authentic and worth in it – a mythology
that is often empty and sometimes destructive of human values.’ See, Louis Henkin,
‘The Mythology of Sovereignty’ in Ronald St John MacDonald (ed), Essays in Honour
of Wang Tieya (Martinus Nijhoff Publishers 1994) 351.
15 Mutanen (n 11) 387. Similarly, Castells makes observations of the persistence of nationstates in the globalised modern world. See M Castells, The Power of Identity. The
Information Age: Economy, Society, and Culture Volume II (2nd edn, Wiley-Blackwell
2010).
16 Michel Foucault, The History of Sexuality Volume 1: An Introduction (Robert Hurley
tr, Pantheon Books 1978) 90–93.
17 ‘La souveraineté est la puissance absolue et perpetuelle d’une Republique.’ Jean Bodin,
Les Six Livres de La République (Gérard Mairet ed, Librairie générale française
1993) 74.
136 Three quests for justification