Without a holistic overview of dispute resolution technology, the important issue
of privatisation of coercion remains invisible, and with it the signs of a justificatory crisis resulting from the connection of state and law. Privatisation of
coercion needs to be addressed as a diverse phenomenon within the legal
system, in which different applications of dispute resolution technology and the
social dimension, e.g. the ideologies reflected in these applications, all contribute
to the overall development. If we are to address the resulting justificatory crisis, it
is necessary to respect the boundaries of law, to remember what can be achieved
by means of law.
Bearing this in mind, UNCITRAL’s work was unable to produce anything more
than technical notes, which do not provide a sufficient framework for binding
ODR. In addition, the EU’s ODR platform has not been as impactful as hoped in
providing efficient redress for consumers, as the finality of the outcomes varies
inconsistently between different jurisdictions and individual national ADR providers. The Internet Corporation for Assigned Names and Numbers (ICANN), on
the other hand, applies a different approach, as the Uniform Domain-Name
Dispute-Resolution Policy (UDRP) procedure for resolving domain name disputes
relies on the direct enforcement of the organisation. However, ICANN’s practice
has led to criticism of the lack of acceptable due process criteria.
22 Although
resolution of domain name disputes leaves much to be desired, the criticism of
ICANN’s multi-stakeholder model might offer beneficial observations for other
governance projects. If regulation of binding ODR or other forms of private
enforcement is based on a multi-stakeholder model, critical attention must be
paid to include civil society actors and to improve transparency, participation and
democracy of such policy setting. However, the difficulties remain when regulation
is sought through truly global instruments. In addition to jurisdictional differences,
e.g. the acceptability of pre-dispute arbitration clauses in business-to-consumer
(B2C) disputes, there is the challenge of respecting such differences while simultaneously establishing a coherent system that works in practice. If another attempt is
made for regulating private enforcement, the policy should include all forms of
private use of coercion.
Despite the contentious quality of private enforcement and the relative lack
of success in developing binding ODR, privatisation of coercion needs to be
addressed in itself. There is a danger in considering enforcement only as a part
of state-orientated judicial redress mechanisms. Technological possibilities of
private enforcement already exist and it would be deceitful to assume that
these private enforcement mechanisms would not employed for the purposes
of forcing compliance in the name of contractual arrangements. In fact, it is
understandable that private enforcement mechanisms are reworded as insurance models, internal complaint-handling systems, or as non-binding ODR
especially by the providers of such services, as otherwise it would be necessary
to address the issue of bypassing the state control of due process before
engaging in use of force. As the quest for justification conducted in this
study hopefully demonstrates, there is a certain value in considering these
models from a procedural perspective as alternatives to state-governed
New bases for justification 187
of privatisation of coercion remains invisible, and with it the signs of a justificatory crisis resulting from the connection of state and law. Privatisation of
coercion needs to be addressed as a diverse phenomenon within the legal
system, in which different applications of dispute resolution technology and the
social dimension, e.g. the ideologies reflected in these applications, all contribute
to the overall development. If we are to address the resulting justificatory crisis, it
is necessary to respect the boundaries of law, to remember what can be achieved
by means of law.
Bearing this in mind, UNCITRAL’s work was unable to produce anything more
than technical notes, which do not provide a sufficient framework for binding
ODR. In addition, the EU’s ODR platform has not been as impactful as hoped in
providing efficient redress for consumers, as the finality of the outcomes varies
inconsistently between different jurisdictions and individual national ADR providers. The Internet Corporation for Assigned Names and Numbers (ICANN), on
the other hand, applies a different approach, as the Uniform Domain-Name
Dispute-Resolution Policy (UDRP) procedure for resolving domain name disputes
relies on the direct enforcement of the organisation. However, ICANN’s practice
has led to criticism of the lack of acceptable due process criteria.
22 Although
resolution of domain name disputes leaves much to be desired, the criticism of
ICANN’s multi-stakeholder model might offer beneficial observations for other
governance projects. If regulation of binding ODR or other forms of private
enforcement is based on a multi-stakeholder model, critical attention must be
paid to include civil society actors and to improve transparency, participation and
democracy of such policy setting. However, the difficulties remain when regulation
is sought through truly global instruments. In addition to jurisdictional differences,
e.g. the acceptability of pre-dispute arbitration clauses in business-to-consumer
(B2C) disputes, there is the challenge of respecting such differences while simultaneously establishing a coherent system that works in practice. If another attempt is
made for regulating private enforcement, the policy should include all forms of
private use of coercion.
Despite the contentious quality of private enforcement and the relative lack
of success in developing binding ODR, privatisation of coercion needs to be
addressed in itself. There is a danger in considering enforcement only as a part
of state-orientated judicial redress mechanisms. Technological possibilities of
private enforcement already exist and it would be deceitful to assume that
these private enforcement mechanisms would not employed for the purposes
of forcing compliance in the name of contractual arrangements. In fact, it is
understandable that private enforcement mechanisms are reworded as insurance models, internal complaint-handling systems, or as non-binding ODR
especially by the providers of such services, as otherwise it would be necessary
to address the issue of bypassing the state control of due process before
engaging in use of force. As the quest for justification conducted in this
study hopefully demonstrates, there is a certain value in considering these
models from a procedural perspective as alternatives to state-governed
New bases for justification 187