inclusive, encompassing software that was earlier understood as courtroom
technology or ODR applications.
15 Discussions on legal technology often focus
on the changes in practice of law enabled by technology, emphasising the
disruption of the legal market.
16
Procedural rules for technology disputes
In addition to courtroom technology, ODR and legal technology, another interface can be found in disputes over technology, e.g. conflicts of patent law and
utility model rights. Special procedural rules have been developed for the resolution of technology disputes. For example, the EU has enacted a directive on the
enforcement of intellectual property rights. The directive includes rules for
intermediaries such as Internet service providers, precautionary measures and
injunctions.
17 However, this interface is excluded from the scope of this study,
as examination of these substantive norms does not contribute to the analysis of
privatisation of enforcement.
In the following section, the overarching theme of this study – how digital
technology increases privatisation of coercion and influences the fundamental
justification of dispute resolution – is approached by describing different examples of how technology affects enforcement of decisions rendered in different
dispute resolution models.
1.3 Technology and enforcement
Despite their differences in implementing technology, both the private and public
schemes of dispute resolution share the overarching need to provide a mechanism
for executing the decisions rendered in the resolution procedure. Voluntary
compliance may often frustrate the need for any further enforcement, but this
does not suffice. The functioning of markets presupposes a functioning model of
governance complete with a mechanism for coercion, either private or public.
18
The need for enforcement becomes tangible when the threat of coercion does
not produce compliance on its own.
19
Still, the relevance of enforcement for dispute resolution cannot be reduced to
its practical importance. Enforcement also provides a vantage point to the core of
conflict management and to legal practice, where the legal system’s inherent
nature in legitimising use of force in the society becomes visible. The state’s
monopoly on violence is often organised through the national courts and private
forms of enforcement often challenge this monopoly. The juncture of private and
public enforcement is further escalated by technological advances that enable
increasing privatisation.
In this section, I describe seven examples of encouraging – or forcing –
compliance in private and public models of dispute resolution. By these examples,
I provide an overview of different forms of enforcement and elaborate on how
new technology-driven forms of forcing compliance overlap, cooperate and
challenge the old ones.
8 Theoretical implications of dispute resolution technology
technology or ODR applications.
15 Discussions on legal technology often focus
on the changes in practice of law enabled by technology, emphasising the
disruption of the legal market.
16
Procedural rules for technology disputes
In addition to courtroom technology, ODR and legal technology, another interface can be found in disputes over technology, e.g. conflicts of patent law and
utility model rights. Special procedural rules have been developed for the resolution of technology disputes. For example, the EU has enacted a directive on the
enforcement of intellectual property rights. The directive includes rules for
intermediaries such as Internet service providers, precautionary measures and
injunctions.
17 However, this interface is excluded from the scope of this study,
as examination of these substantive norms does not contribute to the analysis of
privatisation of enforcement.
In the following section, the overarching theme of this study – how digital
technology increases privatisation of coercion and influences the fundamental
justification of dispute resolution – is approached by describing different examples of how technology affects enforcement of decisions rendered in different
dispute resolution models.
1.3 Technology and enforcement
Despite their differences in implementing technology, both the private and public
schemes of dispute resolution share the overarching need to provide a mechanism
for executing the decisions rendered in the resolution procedure. Voluntary
compliance may often frustrate the need for any further enforcement, but this
does not suffice. The functioning of markets presupposes a functioning model of
governance complete with a mechanism for coercion, either private or public.
18
The need for enforcement becomes tangible when the threat of coercion does
not produce compliance on its own.
19
Still, the relevance of enforcement for dispute resolution cannot be reduced to
its practical importance. Enforcement also provides a vantage point to the core of
conflict management and to legal practice, where the legal system’s inherent
nature in legitimising use of force in the society becomes visible. The state’s
monopoly on violence is often organised through the national courts and private
forms of enforcement often challenge this monopoly. The juncture of private and
public enforcement is further escalated by technological advances that enable
increasing privatisation.
In this section, I describe seven examples of encouraging – or forcing –
compliance in private and public models of dispute resolution. By these examples,
I provide an overview of different forms of enforcement and elaborate on how
new technology-driven forms of forcing compliance overlap, cooperate and
challenge the old ones.
8 Theoretical implications of dispute resolution technology