ethical communication about dispute resolution. In this sense, the concept demarcates what is considered to be due process and what is not. It draws its justificatory
strength from the morality of the communication alongside the authority of
institutions such as the European Court of Human Rights (ECtHR), which is
established by sovereign states. As a source of justification, access to justice transforms the question of justification into the content of a single resolution procedure. On a general level, we would be left empty-handed with a bare reference to
human rights whose content can only be decided in casu. If this is our best answer
to the question of justification, what does this tell us about the law?
Based on this examination, I propose the following: the existing justificatory
narratives do not provide an answer for justifying new forms of private enforcement. Hence, it is necessary to evaluate whether these narratives could be
adapted to this task by reinterpretation. The foundational assumption that has
motivated this study is that the justificatory narratives used to demarcate the legally
accepted use of force do not automatically apply to new, emerging forms of dispute
resolution and enforcement enabled by digital technologies, and a re-evaluation is
called for in order to overcome the potential justificatory crisis.
1.5 Existing research and the scope of this study
Different applications of dispute resolution have been the object of study for
several scholars. The work of Professor Fredric Lederer has been paving the road
for courtroom technology,
40 and the Cyberjustice Laboratory continues examining
the implementation of technology in courts.
41 In addition to these, Dory Reiling’s
comprehensive doctoral dissertation in 2009 has shed light on the many ways in
which IT may assist future judicial reforms.
42 Also national legislative reforms, as
well as international studies, have produced important practical information on
courtroom technology,
43 although such studies seldom address the more abstract
issues of justification.
ODR has received much scholarly attention. Early monographs on ODR
focused mainly on defining ODR and its uses, adopting a role of advocacy.
44 The
majority of research on ODR is published in journal articles, and there is no
established common framework,
45 which has led to a strong emphasis on case
examples and to the adoption of a practical approach. Contributions to a more
elaborate research agenda include the 2004 book by Gabrielle Kaufmann-Kohler
and Schultz and the compilation of articles edited by Abdel Wahab, Katsh and
Rainey in 2012 have contributed to a more elaborate research agenda for ODR.
46
In the UK, Professor Julia Hörnle examines due process standards for online,
arguing for a proportionate model of due process, in which public due process
safeguards would be integrated into private dispute resolution procedures.
47
Professor Pablo Cortés provides a detailed proposal for a European legal framework for consumer ODR that consists of regulation, increasing consumer
awareness through accreditation and uniform trustmarks, enabling mandatory
ODR clauses and establishing procedural legal standards.
48 In the Nordic
countries, ODR was discussed in Susan Schiavetta’s unpublished dissertation at
18 Theoretical implications of dispute resolution technology
strength from the morality of the communication alongside the authority of
institutions such as the European Court of Human Rights (ECtHR), which is
established by sovereign states. As a source of justification, access to justice transforms the question of justification into the content of a single resolution procedure. On a general level, we would be left empty-handed with a bare reference to
human rights whose content can only be decided in casu. If this is our best answer
to the question of justification, what does this tell us about the law?
Based on this examination, I propose the following: the existing justificatory
narratives do not provide an answer for justifying new forms of private enforcement. Hence, it is necessary to evaluate whether these narratives could be
adapted to this task by reinterpretation. The foundational assumption that has
motivated this study is that the justificatory narratives used to demarcate the legally
accepted use of force do not automatically apply to new, emerging forms of dispute
resolution and enforcement enabled by digital technologies, and a re-evaluation is
called for in order to overcome the potential justificatory crisis.
1.5 Existing research and the scope of this study
Different applications of dispute resolution have been the object of study for
several scholars. The work of Professor Fredric Lederer has been paving the road
for courtroom technology,
40 and the Cyberjustice Laboratory continues examining
the implementation of technology in courts.
41 In addition to these, Dory Reiling’s
comprehensive doctoral dissertation in 2009 has shed light on the many ways in
which IT may assist future judicial reforms.
42 Also national legislative reforms, as
well as international studies, have produced important practical information on
courtroom technology,
43 although such studies seldom address the more abstract
issues of justification.
ODR has received much scholarly attention. Early monographs on ODR
focused mainly on defining ODR and its uses, adopting a role of advocacy.
44 The
majority of research on ODR is published in journal articles, and there is no
established common framework,
45 which has led to a strong emphasis on case
examples and to the adoption of a practical approach. Contributions to a more
elaborate research agenda include the 2004 book by Gabrielle Kaufmann-Kohler
and Schultz and the compilation of articles edited by Abdel Wahab, Katsh and
Rainey in 2012 have contributed to a more elaborate research agenda for ODR.
46
In the UK, Professor Julia Hörnle examines due process standards for online,
arguing for a proportionate model of due process, in which public due process
safeguards would be integrated into private dispute resolution procedures.
47
Professor Pablo Cortés provides a detailed proposal for a European legal framework for consumer ODR that consists of regulation, increasing consumer
awareness through accreditation and uniform trustmarks, enabling mandatory
ODR clauses and establishing procedural legal standards.
48 In the Nordic
countries, ODR was discussed in Susan Schiavetta’s unpublished dissertation at
18 Theoretical implications of dispute resolution technology