the University of Oslo in 2008,
49 and Tapio Puurunen’s dissertation at the
University of Helsinki in 2005.
50
Regardless of the growing body of research, enforcement in general, and private
enforcement in particular, have mostly remained peripheral. Cortés touches upon
self-enforcement mechanisms of ODR providers and lists the lack of enforcement
as one of the possible impediments to the development of ODR. Also, he states
that the public enforcement system should complement self-enforcement
mechanisms.
51 Thornburg points out that ICANN has found a solution to the
enforcement issue but this solution cannot be adopted in other forms of ODR.
52
Kaufmann-Kohler and Schultz, on the other hand, make a distinction between
indirect and direct self-enforcement. In their definition, indirect self-enforcement
refers to trustmarks, reputation systems, exclusion from the marketplace and other
modes of directing behaviour, whereas direct self-enforcement includes escrows,
chargebacks, insurance mechanisms and ‘judgment funds’ established by ODR
providers or third parties.
53 They consider self-enforcement to be the best option
for ODR decisions in case voluntary compliance is not an option.
54 Despite these
concise remarks, there is no comprehensive examination of technology-enabled
enforcement.
Although scholarship on the impact of dispute resolution technology on
enforcement is scarce, justification has been, in one way or another, the object
of study of most legal scholars. In the end, the very question of law’s selfdescription is a question of justification and legitimacy. The emergence of private
regimes has been discussed in legal theory by the German legal scholars Teubner
and Fischer-Lescano,
55 and Calliess,
56 among others. Further research on private
governance can be found in several fields of law as well as in economics, political
science and social sciences. These discussions, although illuminating and relevant,
provide limited support to the specific research objective of this study to examine
the theoretical implications of privatisation of coercion brought on by dispute
resolution technology.
This study aims to remedy the relative lack of theoretical research on dispute
resolution technology. Such abstract inquiry is necessary if we are to provide a
framework for assessing how the use of technology changes the practice of law.
Implications of such study are also practical, as the results provide much needed
background information for legislative reforms. The perspective of conflict
management, and ultimately that of access to justice, is a fruitful starting point
for assessing the impact new technology has on the practice of law, as procedural
structures set the frames in which the law functions. In certain respects this means
that the challenge of technology becomes more pronounced in conflict management and hence the results found in this context could be extrapolated to the
overall legal system.
This being said, the examination of dispute resolution technology and privatisation of coercion that these applications enable is entwined with the growing demand
for efficiency many civil justice systems face nowadays. However, efficiency should
not be understood as an end in itself but should be interpreted in connection
with the values reflected in conflict management systems. Canadian researchers
Introduction 19
49 and Tapio Puurunen’s dissertation at the
University of Helsinki in 2005.
50
Regardless of the growing body of research, enforcement in general, and private
enforcement in particular, have mostly remained peripheral. Cortés touches upon
self-enforcement mechanisms of ODR providers and lists the lack of enforcement
as one of the possible impediments to the development of ODR. Also, he states
that the public enforcement system should complement self-enforcement
mechanisms.
51 Thornburg points out that ICANN has found a solution to the
enforcement issue but this solution cannot be adopted in other forms of ODR.
52
Kaufmann-Kohler and Schultz, on the other hand, make a distinction between
indirect and direct self-enforcement. In their definition, indirect self-enforcement
refers to trustmarks, reputation systems, exclusion from the marketplace and other
modes of directing behaviour, whereas direct self-enforcement includes escrows,
chargebacks, insurance mechanisms and ‘judgment funds’ established by ODR
providers or third parties.
53 They consider self-enforcement to be the best option
for ODR decisions in case voluntary compliance is not an option.
54 Despite these
concise remarks, there is no comprehensive examination of technology-enabled
enforcement.
Although scholarship on the impact of dispute resolution technology on
enforcement is scarce, justification has been, in one way or another, the object
of study of most legal scholars. In the end, the very question of law’s selfdescription is a question of justification and legitimacy. The emergence of private
regimes has been discussed in legal theory by the German legal scholars Teubner
and Fischer-Lescano,
55 and Calliess,
56 among others. Further research on private
governance can be found in several fields of law as well as in economics, political
science and social sciences. These discussions, although illuminating and relevant,
provide limited support to the specific research objective of this study to examine
the theoretical implications of privatisation of coercion brought on by dispute
resolution technology.
This study aims to remedy the relative lack of theoretical research on dispute
resolution technology. Such abstract inquiry is necessary if we are to provide a
framework for assessing how the use of technology changes the practice of law.
Implications of such study are also practical, as the results provide much needed
background information for legislative reforms. The perspective of conflict
management, and ultimately that of access to justice, is a fruitful starting point
for assessing the impact new technology has on the practice of law, as procedural
structures set the frames in which the law functions. In certain respects this means
that the challenge of technology becomes more pronounced in conflict management and hence the results found in this context could be extrapolated to the
overall legal system.
This being said, the examination of dispute resolution technology and privatisation of coercion that these applications enable is entwined with the growing demand
for efficiency many civil justice systems face nowadays. However, efficiency should
not be understood as an end in itself but should be interpreted in connection
with the values reflected in conflict management systems. Canadian researchers
Introduction 19