mechanisms online that also incorporate the possibility of coercion? The question of
acceptability of private enforcement connects with the necessity of finding dispute
resolution mechanisms that can also provide efficient legal protection online. The
existence of actual redress mechanisms is vital for e-commerce, as without them
consumers’ willingness to trade online and cross-border suffers. As public courts
have been unable to provide redress for low-intensity disputes, private online dispute
resolution (ODR) has emerged to take its place. Although private mechanisms are
able improve trust and encourage online trade, without a method of enforcement
private ordering is often left without an actual effect. Different alternatives for
steering online behaviour have developed, e.g. ‘soft’ instruments such as user
reviews, reputation systems, chargebacks and trustmarks,
3 and also industry-specific
codes of conduct, best practices and self-regulation could provide some methods for
steering online behaviour. These methods, however, mostly impact future behaviour
and do not provide sufficient redress, as they cannot force compliance in individual
cases. Thus, mechanisms such as technology-enabled private enforcement are
needed, that are able to provide some form of redress without reference to the
state, but at the same time their existence is problematic, to say the least.
Private enforcement comes with a multitude of other issues that are not easily
solved, as private use of coercion bypasses the state’s monopoly on violence and
circumvents state control on due process as the prerequisite of enforcement.
Although private providers are bound by the national legislation of their place of
business, such norms often fall short of regulating the due process of private
enforcement. The issue becomes even more complicated when the elements of
dispute resolution and use of force are disguised as insurance models or contractual issues. This said, private enforcement seems to fulfil a need for redress that is
otherwise hard to address but the solution opens up a complement new set of
problems. Also, it is noteworthy that we cannot derive what ought to be from
what is, i.e. we cannot maintain that private enforcement should be acknowledged legally because it exists in practice.
Still, the difficulties in finding a basis for privatised coercion does not change
the fact that the legal irritant needs to be addressed in order to overcome the
justificatory challenge brought on by implementing technology to dispute resolution. One way to circumvent the justificatory crisis of private enforcement is to
continue to rely on the connection of law and state by developing sufficient
public mechanisms through the digitalisation of national courts and the introduction of sovereignty-based standards. However, such mechanisms would
require significant court reforms across all jurisdictions in addition to reaching
consensus on the content of a multilateral Convention, both options seeming
unlikely owing to the required public spending and the failure of UNCITRAL’s
working group on ODR.
Nevertheless, one more option for finding justification can be proposed. As
discussed above in Chapter 4, the social dimension of modern technology and
the societal changes that result from its increasing use can be construed as an
emergent social system of the use of ICT. As justification for privatised coercion
cannot be found from the connection of law and state or from the consent and
New bases for justification 181
acceptability of private enforcement connects with the necessity of finding dispute
resolution mechanisms that can also provide efficient legal protection online. The
existence of actual redress mechanisms is vital for e-commerce, as without them
consumers’ willingness to trade online and cross-border suffers. As public courts
have been unable to provide redress for low-intensity disputes, private online dispute
resolution (ODR) has emerged to take its place. Although private mechanisms are
able improve trust and encourage online trade, without a method of enforcement
private ordering is often left without an actual effect. Different alternatives for
steering online behaviour have developed, e.g. ‘soft’ instruments such as user
reviews, reputation systems, chargebacks and trustmarks,
3 and also industry-specific
codes of conduct, best practices and self-regulation could provide some methods for
steering online behaviour. These methods, however, mostly impact future behaviour
and do not provide sufficient redress, as they cannot force compliance in individual
cases. Thus, mechanisms such as technology-enabled private enforcement are
needed, that are able to provide some form of redress without reference to the
state, but at the same time their existence is problematic, to say the least.
Private enforcement comes with a multitude of other issues that are not easily
solved, as private use of coercion bypasses the state’s monopoly on violence and
circumvents state control on due process as the prerequisite of enforcement.
Although private providers are bound by the national legislation of their place of
business, such norms often fall short of regulating the due process of private
enforcement. The issue becomes even more complicated when the elements of
dispute resolution and use of force are disguised as insurance models or contractual issues. This said, private enforcement seems to fulfil a need for redress that is
otherwise hard to address but the solution opens up a complement new set of
problems. Also, it is noteworthy that we cannot derive what ought to be from
what is, i.e. we cannot maintain that private enforcement should be acknowledged legally because it exists in practice.
Still, the difficulties in finding a basis for privatised coercion does not change
the fact that the legal irritant needs to be addressed in order to overcome the
justificatory challenge brought on by implementing technology to dispute resolution. One way to circumvent the justificatory crisis of private enforcement is to
continue to rely on the connection of law and state by developing sufficient
public mechanisms through the digitalisation of national courts and the introduction of sovereignty-based standards. However, such mechanisms would
require significant court reforms across all jurisdictions in addition to reaching
consensus on the content of a multilateral Convention, both options seeming
unlikely owing to the required public spending and the failure of UNCITRAL’s
working group on ODR.
Nevertheless, one more option for finding justification can be proposed. As
discussed above in Chapter 4, the social dimension of modern technology and
the societal changes that result from its increasing use can be construed as an
emergent social system of the use of ICT. As justification for privatised coercion
cannot be found from the connection of law and state or from the consent and
New bases for justification 181