In Chapter 5, the coexistence of ADR and litigation was described through the
traditional ideal model, which explained how the fiction of state monopoly on
violence can be sustained while simultaneously allowing private dispute resolution. This interplay was based on the state’s control over enforcement, where
private outcomes needed to resort to the public enforcement mechanism and the
ensuing due process control. It was claimed that this model disintegrates as
private enforcement bypasses the state control and thus incidentally ends up
challenging it. However, it is possible that this challenge can be downplayed by
stressing the role of consent, by restoring its value to alleviate the shortcomings
that follow from the connection of law and state. Before the era of the nation-state,
contractual dispute resolution was commonplace, although the concept of consent
as we know it was still waiting to be formulated. As Norwegian sociologist
Vilhelm Aubert has noted, in tribal communities consent-based dispute resolution
is sometimes institutionalised by using powerful members of the community as
go-betweens. The outcome is seldom contested, as the contesting party would
then face with both the opposing party and the go-between and their families in
the following process.
24 In addition to depicting social pressure for voluntary
compliance as an alternative of enforcement, Aubert’s example of tribal practices
accentuates the community-oriented, informal origins of conflict management,
which run parallel to the criticism of the ADR movement.
The role consent plays in modern dispute resolution can be divided into three
different instances: arbitration, non-adjudicative ADR mechanisms and consensual
emphasis in litigation.
Arbitration is often depicted as the textbook example of private ordering, in
which the meaning of private autonomy becomes particularly pronounced, as the
arbitral agreement itself is de facto the basis of the dispute resolution procedure.
Arbitration is an adjudicative procedure and thus resembles traditional stategoverned litigation. As stated above, arbitral awards rely on the state system in
the enforcement phase, although voluntary compliance is highlighted especially
within the new lex mercatoria doctrine. Alec Sweet Stone considers that the
increase in arbitration adds to the dominance of the a-national regime of
international commerce, a development detaching from the state altogether.
25
In international commercial arbitration Kurkela and Turunen have considered
the role of the arbitration clause crucial for the tribunal’s jurisdiction. The
agreement of the parties forms the jurisdiction based on freedom of contract.
However, they make the distinction between this concrete mandate of the
arbitrator (mandate in concreto) and the abstract mandate of the government
that allows the freedom of contract and the delegation of judicial authority
(mandate in abstracto).
26 Nader and Shugart see arbitration as an escape from
litigation, which unfortunately may lead back to the official judicial system at the
enforcement phase.
27 While discussing the history of arbitration, Born notes that
it is questionable whether medieval arbitration has, in fact, based its jurisdiction
on consent to the same degree as we understand the limits of consent today.
Through contrasting the present understanding of consent’s meaning for
jurisdiction, Born brings forward the premise that consent is an important factor
Consent and private autonomy 149
traditional ideal model, which explained how the fiction of state monopoly on
violence can be sustained while simultaneously allowing private dispute resolution. This interplay was based on the state’s control over enforcement, where
private outcomes needed to resort to the public enforcement mechanism and the
ensuing due process control. It was claimed that this model disintegrates as
private enforcement bypasses the state control and thus incidentally ends up
challenging it. However, it is possible that this challenge can be downplayed by
stressing the role of consent, by restoring its value to alleviate the shortcomings
that follow from the connection of law and state. Before the era of the nation-state,
contractual dispute resolution was commonplace, although the concept of consent
as we know it was still waiting to be formulated. As Norwegian sociologist
Vilhelm Aubert has noted, in tribal communities consent-based dispute resolution
is sometimes institutionalised by using powerful members of the community as
go-betweens. The outcome is seldom contested, as the contesting party would
then face with both the opposing party and the go-between and their families in
the following process.
24 In addition to depicting social pressure for voluntary
compliance as an alternative of enforcement, Aubert’s example of tribal practices
accentuates the community-oriented, informal origins of conflict management,
which run parallel to the criticism of the ADR movement.
The role consent plays in modern dispute resolution can be divided into three
different instances: arbitration, non-adjudicative ADR mechanisms and consensual
emphasis in litigation.
Arbitration is often depicted as the textbook example of private ordering, in
which the meaning of private autonomy becomes particularly pronounced, as the
arbitral agreement itself is de facto the basis of the dispute resolution procedure.
Arbitration is an adjudicative procedure and thus resembles traditional stategoverned litigation. As stated above, arbitral awards rely on the state system in
the enforcement phase, although voluntary compliance is highlighted especially
within the new lex mercatoria doctrine. Alec Sweet Stone considers that the
increase in arbitration adds to the dominance of the a-national regime of
international commerce, a development detaching from the state altogether.
25
In international commercial arbitration Kurkela and Turunen have considered
the role of the arbitration clause crucial for the tribunal’s jurisdiction. The
agreement of the parties forms the jurisdiction based on freedom of contract.
However, they make the distinction between this concrete mandate of the
arbitrator (mandate in concreto) and the abstract mandate of the government
that allows the freedom of contract and the delegation of judicial authority
(mandate in abstracto).
26 Nader and Shugart see arbitration as an escape from
litigation, which unfortunately may lead back to the official judicial system at the
enforcement phase.
27 While discussing the history of arbitration, Born notes that
it is questionable whether medieval arbitration has, in fact, based its jurisdiction
on consent to the same degree as we understand the limits of consent today.
Through contrasting the present understanding of consent’s meaning for
jurisdiction, Born brings forward the premise that consent is an important factor
Consent and private autonomy 149