enforcement. Although this perspective is not the only one of importance, it
sheds light on the function of enforcement that otherwise would go unnoticed. The significance of privatisation of coercion is further emphasised by the
importance of enforcement as a part of access to justice. As the case law of
ECtHR illustrates, the execution of final and binding judicial decisions should
be understood as belonging to the fundamental right of fair trial.
23
However, enforcement is not the only, or even the most central, of due process
principles. If this were the case, then the choice would simply be for binding
models of dispute resolution, which would lead to accepting private enforcement
as it is. However, there are valid reasons for arguing that enforcement of ODR as
online arbitration would be detrimental to consumer protection. The unequal
power balances between business and consumers, the danger of repeat player
bias, and finality of arbitral awards are all factors that contribute to the lack of
sufficient consumer protection.
As both private and public schemes of enforcing decisions are available, there is no
longer the need to consider enforceability only in relation to courts. However, both
private and public approaches to enforcement come with baggage. The challenge of
private enforcement, both in the form of private enforcement of e-commerce platforms and as self-executing smart contracts, relates to the ideological choices behind
the technological solutions, what we have called here the neo-liberal dilemma.
24
Although private enforcement would most likely provide efficient enforcement
within reasonable time, it is unclear how well private actors would take into
consideration power imbalances and would uphold due process where there is no
mandatory regulation and monitoring to force them to do so. Also, human rights
obligations are mostly directed towards state actors, as is pointed out regarding
ICANN, and it is unclear to what extent they would obligate private actors when
they provide services of dispute resolution and enforcement.
If the decision is made for public redress mechanisms, other challenges need to
be taken into consideration. First and foremost, solutions are needed to tackle
the threshold issue so that future models do not end up repeating the shortcomings of public courts regarding the resolution of low-intensity online disputes. In addition to this, there is the danger that public mechanisms created
through black letter law might forestall future innovation and possible selfregulation.
25 If public redress mechanisms are the chosen way forward, it is
necessary to consider the position of private enforcement and its regulation
separately. Otherwise the private use of coercion, which is enabled by technology
and bypasses state control, is left in the margins, disguised simply as a contractual
issue. This in turn could prove to be a problem for the coherence of the legal
system, as the legal irritant would then remain unaddressed.
One option worth looking into could be the formulation of an intermediary model where both public and private schemes would be connected, and
some attempts to this end have been made. For example, trustmarks have
been discussed in literature and some applications of them exist,
26 but this
solution has not yet gained sufficient momentum to form the basis of policy
recommendations.
188 New ways forward?
sheds light on the function of enforcement that otherwise would go unnoticed. The significance of privatisation of coercion is further emphasised by the
importance of enforcement as a part of access to justice. As the case law of
ECtHR illustrates, the execution of final and binding judicial decisions should
be understood as belonging to the fundamental right of fair trial.
23
However, enforcement is not the only, or even the most central, of due process
principles. If this were the case, then the choice would simply be for binding
models of dispute resolution, which would lead to accepting private enforcement
as it is. However, there are valid reasons for arguing that enforcement of ODR as
online arbitration would be detrimental to consumer protection. The unequal
power balances between business and consumers, the danger of repeat player
bias, and finality of arbitral awards are all factors that contribute to the lack of
sufficient consumer protection.
As both private and public schemes of enforcing decisions are available, there is no
longer the need to consider enforceability only in relation to courts. However, both
private and public approaches to enforcement come with baggage. The challenge of
private enforcement, both in the form of private enforcement of e-commerce platforms and as self-executing smart contracts, relates to the ideological choices behind
the technological solutions, what we have called here the neo-liberal dilemma.
24
Although private enforcement would most likely provide efficient enforcement
within reasonable time, it is unclear how well private actors would take into
consideration power imbalances and would uphold due process where there is no
mandatory regulation and monitoring to force them to do so. Also, human rights
obligations are mostly directed towards state actors, as is pointed out regarding
ICANN, and it is unclear to what extent they would obligate private actors when
they provide services of dispute resolution and enforcement.
If the decision is made for public redress mechanisms, other challenges need to
be taken into consideration. First and foremost, solutions are needed to tackle
the threshold issue so that future models do not end up repeating the shortcomings of public courts regarding the resolution of low-intensity online disputes. In addition to this, there is the danger that public mechanisms created
through black letter law might forestall future innovation and possible selfregulation.
25 If public redress mechanisms are the chosen way forward, it is
necessary to consider the position of private enforcement and its regulation
separately. Otherwise the private use of coercion, which is enabled by technology
and bypasses state control, is left in the margins, disguised simply as a contractual
issue. This in turn could prove to be a problem for the coherence of the legal
system, as the legal irritant would then remain unaddressed.
One option worth looking into could be the formulation of an intermediary model where both public and private schemes would be connected, and
some attempts to this end have been made. For example, trustmarks have
been discussed in literature and some applications of them exist,
26 but this
solution has not yet gained sufficient momentum to form the basis of policy
recommendations.
188 New ways forward?