Based on this, it is likely that ODR using non-binding ADR methods does not
provide the desired solution for low-intensity online disputes. Public courts are
latecomers to the field of dispute resolution technology, but court-based applications are pressing forward equipped with the keys to the doors of public
enforcement. If the digitalisation of public courts indeed reaches the level where
the threshold issues no longer form obstacles to access to courts in low-intensity
disputes, it is possible that the problem of low-intensity disputes and their
enforcement will solve itself organically. In order to do so, however, technology
needs to be brought to court proceedings knowing that one of the key issues to
address is the resolution of cross-border low-intensity disputes, which otherwise
might or might not be resolved with sufficient due process – if resolved at all.
The choices made when regulating private enforcement, as well as when reforming court practices, have the power to decide whether the justificatory crisis is
conquered or not.
Notes
1 See e.g. M Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument. Reissue with a New Epilogue (Cambridge University Press 2005) 563–564.
2 On sedimentation of legal values, see K Tuori, Critical Legal Positivism (Ashgate
2002) 197–216.
3 For an overview on escrow services, feedback systems, and trustmarks see P Cortés, Online
Dispute Resolution for Consumers in the European Union (Routledge 2011) 60–64.
4 L Lessig, Code Version 2.0 (Basic Books 2006), available at http://codev2.cc/down
load+remix/ (accessed 27 June 2018) 94.
5 See Nakamoto’s seminal white paper, Satoshi Nakamoto, ‘Bitcoin: A Peer-to-Peer
Electronic Cash System’, available at http://nakamotoinstitute.org/bitcoin/ (accessed
27 June 2018). A point of interest is that Nakamoto’s true identity is still unknown
and there is speculation whether the technology was in fact developed by a group of
computer scientists rather than a single person. The veil of mystery has gained further
weight by his disappearance from the bitcoin context in April 2011. See Joshua Davis,
‘The Crypto-Currency, Bitcoin and Its Mysterious Inventor’ The New Yorker (10
October 2011), available at http://www.newyorker.com/magazine/2011/10/10/
the-crypto-currency (accessed 27 June 2018).
6 Professor Joshua Fairfield describes the ledger through the following example: ‘For
example, imagine a list on a whiteboard in a dormitory floor, keeping track of who
paid for pizza last time. The advantages to such a list – public availability and ease of
editing – are clear. The disadvantages are equally clear. Someone might attempt to edit
the list to their personal advantage. A solution that immediately suggests itself is that
the dorm RA might be entrusted to keep the list. Yet then there is the concern that the
RA may make a mistake, or be unavailable over the weekend, or be untrustworthy and
edit the list to benefit himself. What is needed is a public ledger that is constrained by
rules of consensus to prevent individuals from modifying the list to their exclusive
benefit. That is the central technology underlying Bitcoin: the “trustless public ledger”
(TPL)’. See Joshua Fairfield, ‘Smart Contracts, Bitcoin Bots, and Consumer Protection’ (2014) 71 Washington & Lee Law Review Online Edition 35.
7 As François Velde describes, ‘Bitcoin solves two challenges of digital money – controlling its creation and avoiding its duplication – at once’. François Velde, ‘Bitcoin: A
Primer’ (2013) 317 Chicago Fed Letter, available at https://www.chicagofed.org/
publications/chicago-fed-letter/2013/december-317 (accessed 27 June 2018).
New bases for justification 189
provide the desired solution for low-intensity online disputes. Public courts are
latecomers to the field of dispute resolution technology, but court-based applications are pressing forward equipped with the keys to the doors of public
enforcement. If the digitalisation of public courts indeed reaches the level where
the threshold issues no longer form obstacles to access to courts in low-intensity
disputes, it is possible that the problem of low-intensity disputes and their
enforcement will solve itself organically. In order to do so, however, technology
needs to be brought to court proceedings knowing that one of the key issues to
address is the resolution of cross-border low-intensity disputes, which otherwise
might or might not be resolved with sufficient due process – if resolved at all.
The choices made when regulating private enforcement, as well as when reforming court practices, have the power to decide whether the justificatory crisis is
conquered or not.
Notes
1 See e.g. M Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument. Reissue with a New Epilogue (Cambridge University Press 2005) 563–564.
2 On sedimentation of legal values, see K Tuori, Critical Legal Positivism (Ashgate
2002) 197–216.
3 For an overview on escrow services, feedback systems, and trustmarks see P Cortés, Online
Dispute Resolution for Consumers in the European Union (Routledge 2011) 60–64.
4 L Lessig, Code Version 2.0 (Basic Books 2006), available at http://codev2.cc/down
load+remix/ (accessed 27 June 2018) 94.
5 See Nakamoto’s seminal white paper, Satoshi Nakamoto, ‘Bitcoin: A Peer-to-Peer
Electronic Cash System’, available at http://nakamotoinstitute.org/bitcoin/ (accessed
27 June 2018). A point of interest is that Nakamoto’s true identity is still unknown
and there is speculation whether the technology was in fact developed by a group of
computer scientists rather than a single person. The veil of mystery has gained further
weight by his disappearance from the bitcoin context in April 2011. See Joshua Davis,
‘The Crypto-Currency, Bitcoin and Its Mysterious Inventor’ The New Yorker (10
October 2011), available at http://www.newyorker.com/magazine/2011/10/10/
the-crypto-currency (accessed 27 June 2018).
6 Professor Joshua Fairfield describes the ledger through the following example: ‘For
example, imagine a list on a whiteboard in a dormitory floor, keeping track of who
paid for pizza last time. The advantages to such a list – public availability and ease of
editing – are clear. The disadvantages are equally clear. Someone might attempt to edit
the list to their personal advantage. A solution that immediately suggests itself is that
the dorm RA might be entrusted to keep the list. Yet then there is the concern that the
RA may make a mistake, or be unavailable over the weekend, or be untrustworthy and
edit the list to benefit himself. What is needed is a public ledger that is constrained by
rules of consensus to prevent individuals from modifying the list to their exclusive
benefit. That is the central technology underlying Bitcoin: the “trustless public ledger”
(TPL)’. See Joshua Fairfield, ‘Smart Contracts, Bitcoin Bots, and Consumer Protection’ (2014) 71 Washington & Lee Law Review Online Edition 35.
7 As François Velde describes, ‘Bitcoin solves two challenges of digital money – controlling its creation and avoiding its duplication – at once’. François Velde, ‘Bitcoin: A
Primer’ (2013) 317 Chicago Fed Letter, available at https://www.chicagofed.org/
publications/chicago-fed-letter/2013/december-317 (accessed 27 June 2018).
New bases for justification 189