system. The new lex mercatoria is advocated as a response to the fragmentation
of national legal systems and their inability to provide protection for international commercial disputes. As such, its autonomy comprises general principles
of law and customary business practices, international commercial arbitration
and enforcement through social sanctions (e.g. reputation) and codification to
principles, standards and business practices. Based on an empiric analysis of
these functions, Calliess states that to some extent the regime does its own
norm-making, but its enforcement relies on cooperation with states, as arbitral
awards are most often enforced based on the New York Convention. Still,
voluntary compliance plays a role in enforcement and in certain industries
social sanctions may be sufficient.
However, Calliess concludes that the new lex mercatoria is a hybrid model of
both public and private governance, and as such cannot be described as an anational, uniform or comprehensive legal system.
21 This hybrid nature is also
acknowledged by is proponents: for example, Alec Stone Sweet considers the new
lex mercatoria ‘parasitic on state authority’, resorting to state mechanisms of
enforcement when necessary.
22 Thus, it seems that the discussion of the new lex
mercatoria touches upon the same tension between private and public as private
enforcement. As such, the debate helps in contextualising these new applications
of dispute resolution technology within the interface of law and economics.
However, it does not seem to provide a uniform foundation for an examination
of these phenomena that would furnish us with additional tools.
6.2 Consent in dispute resolution
6.2.1 Where can we find consent in dispute resolution?
We have established that the concept of consent has roots in ancient Roman
contract law but otherwise is extensively the product of the nineteenth century.
Next, the issue of consent needs to be reframed in the context of dispute
resolution technology, and as a source of justification. This means that instead
of adopting a position against or for private autonomy, how the concept is
employed to justify dispute resolution in general is evaluated, and how the
concept reacts to the new irritant of technology-driven private enforcement.
The question is the same as with sovereignty: is principle of consent flexible
enough to accommodate the needs for justification presented by private
enforcement?
Whereas finding vocalisations about the self-evident presence of sovereignty in
dispute resolution was difficult, this is not the case with consent. The importance
of consent becomes apparent especially in alternative dispute resolution, which in
itself describes the justificatory narrative’s complementary nature in justifying
dispute resolution. In ADR, stressing consent has more practical meaning than
just the acknowledgment of ideological roots: consent can create the basis for
jurisdiction.
23 From ADR, the scope of consent has expanded to other forms of
dispute resolution. The importance of consent is also increasing in litigation.
148 Three quests for justification
of national legal systems and their inability to provide protection for international commercial disputes. As such, its autonomy comprises general principles
of law and customary business practices, international commercial arbitration
and enforcement through social sanctions (e.g. reputation) and codification to
principles, standards and business practices. Based on an empiric analysis of
these functions, Calliess states that to some extent the regime does its own
norm-making, but its enforcement relies on cooperation with states, as arbitral
awards are most often enforced based on the New York Convention. Still,
voluntary compliance plays a role in enforcement and in certain industries
social sanctions may be sufficient.
However, Calliess concludes that the new lex mercatoria is a hybrid model of
both public and private governance, and as such cannot be described as an anational, uniform or comprehensive legal system.
21 This hybrid nature is also
acknowledged by is proponents: for example, Alec Stone Sweet considers the new
lex mercatoria ‘parasitic on state authority’, resorting to state mechanisms of
enforcement when necessary.
22 Thus, it seems that the discussion of the new lex
mercatoria touches upon the same tension between private and public as private
enforcement. As such, the debate helps in contextualising these new applications
of dispute resolution technology within the interface of law and economics.
However, it does not seem to provide a uniform foundation for an examination
of these phenomena that would furnish us with additional tools.
6.2 Consent in dispute resolution
6.2.1 Where can we find consent in dispute resolution?
We have established that the concept of consent has roots in ancient Roman
contract law but otherwise is extensively the product of the nineteenth century.
Next, the issue of consent needs to be reframed in the context of dispute
resolution technology, and as a source of justification. This means that instead
of adopting a position against or for private autonomy, how the concept is
employed to justify dispute resolution in general is evaluated, and how the
concept reacts to the new irritant of technology-driven private enforcement.
The question is the same as with sovereignty: is principle of consent flexible
enough to accommodate the needs for justification presented by private
enforcement?
Whereas finding vocalisations about the self-evident presence of sovereignty in
dispute resolution was difficult, this is not the case with consent. The importance
of consent becomes apparent especially in alternative dispute resolution, which in
itself describes the justificatory narrative’s complementary nature in justifying
dispute resolution. In ADR, stressing consent has more practical meaning than
just the acknowledgment of ideological roots: consent can create the basis for
jurisdiction.
23 From ADR, the scope of consent has expanded to other forms of
dispute resolution. The importance of consent is also increasing in litigation.
148 Three quests for justification