Fabien Gélinas et al. emphasise the need for a value-based framework for justice
reforms and state that “efficiency for the sake of freeing up resources should be
instrumental to other ends, which need to be researched and identified, rather than
an end in and of itself”.
57 This study follows this lead by providing critical insights
into justifying privatisation of coercion and simultaneously lays the groundwork for
addressing the challenge that technology imposes on the legal system.
This study should be read as a hybrid of legal theory applied to the practice of
conflict management, which stipulates a relatively high level of abstraction. This
choice excludes a systematic examination of national procedural systems as well as
multilateral Conventions. I refer to national legislation and case law, and to
Convention-based normative regimes only when necessary for the objective of
examining the justificatory narratives on a general level. Privatisation of coercion
by technology is a global theme but the writer’s perspective is influenced by
Nordic civil law tradition, which might affect the argumentation. Although
justifying private enforcement is closely connected with other issues of governance, Internet governance and other rules of virtual worlds are excluded from the
scope of this study.
58
Notes
1 It should be noted that technology issues have received considerable attention,
especially those related to intellectual property, Internet governance and data protection. Another issue is that the pace of technological innovation often exceeds that of
legislation creating new challenges for the legal system. See Frank Fechner, Medienrecht (12th edn, Mohr Siebeck 2011) 346; Greg Lastowka, Virtual Justice: The New
Laws of Online Worlds (Yale University Press 2010) 71–73.
2 Harvard Business School Professors Joseph Bower and Clayton Christensen explain,
through their theory of disruptive innovation, why leading companies fail to maintain
their success when markets change. According to their theory, market leaders are
fixated on fulfilling their existing customers’ needs to sustain their market share and
are thus unable to predict the needs of potential customers in the future. In turn,
outsiders to the existing markets are equipped to develop technology for unestablished
markets, which in time may lead to disrupting the existing markets as well. See Joseph
L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’
(1995) 73 Harvard Business Review 43.
3 See e.g. Fredric I Lederer, ‘Wired, What We Have Learned About Courtroom Technology’ (2010) 24 ABA Criminal Justice 18; Karim Benyekhlef, Emmanuelle Amar and
Valentin Callipel, ‘ICT-Driven Strategies for Reforming Access to Justice Mechanisms in
Developing Countries’ (2015) 6 World Bank Legal Review 325; For a general overview
of implementing technology to the law of evidence see David Wotherspoon and Alex
Cameron, Electronic Evidence and E-Discovery (LexisNexis Canada 2010); On the
ramifications of technology to courts and judicial ethics, see Karen Eltis, Courts,
Litigants and the Digital Age: Law, Ethics and Practice (Irwin Law 2012).
4 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between
the courts of the Member States in the taking of evidence in civil or commercial
matters 2001; For an overview on the application of the Regulation see Vesna Rijavec,
Tomaž Keresteš and Tjaša Ivanc (eds), Dimensions of Evidence in European Civil
Procedure (Kluwer Law International 2016).
5 The first articles on ODR were published by Ethan Katsh as early as 1996. See Ethan
M Katsh, ‘Dispute Resolution in Cyberspace’ (1996) 28 Connecticut Law Review
20 Theoretical implications of dispute resolution technology
reforms and state that “efficiency for the sake of freeing up resources should be
instrumental to other ends, which need to be researched and identified, rather than
an end in and of itself”.
57 This study follows this lead by providing critical insights
into justifying privatisation of coercion and simultaneously lays the groundwork for
addressing the challenge that technology imposes on the legal system.
This study should be read as a hybrid of legal theory applied to the practice of
conflict management, which stipulates a relatively high level of abstraction. This
choice excludes a systematic examination of national procedural systems as well as
multilateral Conventions. I refer to national legislation and case law, and to
Convention-based normative regimes only when necessary for the objective of
examining the justificatory narratives on a general level. Privatisation of coercion
by technology is a global theme but the writer’s perspective is influenced by
Nordic civil law tradition, which might affect the argumentation. Although
justifying private enforcement is closely connected with other issues of governance, Internet governance and other rules of virtual worlds are excluded from the
scope of this study.
58
Notes
1 It should be noted that technology issues have received considerable attention,
especially those related to intellectual property, Internet governance and data protection. Another issue is that the pace of technological innovation often exceeds that of
legislation creating new challenges for the legal system. See Frank Fechner, Medienrecht (12th edn, Mohr Siebeck 2011) 346; Greg Lastowka, Virtual Justice: The New
Laws of Online Worlds (Yale University Press 2010) 71–73.
2 Harvard Business School Professors Joseph Bower and Clayton Christensen explain,
through their theory of disruptive innovation, why leading companies fail to maintain
their success when markets change. According to their theory, market leaders are
fixated on fulfilling their existing customers’ needs to sustain their market share and
are thus unable to predict the needs of potential customers in the future. In turn,
outsiders to the existing markets are equipped to develop technology for unestablished
markets, which in time may lead to disrupting the existing markets as well. See Joseph
L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’
(1995) 73 Harvard Business Review 43.
3 See e.g. Fredric I Lederer, ‘Wired, What We Have Learned About Courtroom Technology’ (2010) 24 ABA Criminal Justice 18; Karim Benyekhlef, Emmanuelle Amar and
Valentin Callipel, ‘ICT-Driven Strategies for Reforming Access to Justice Mechanisms in
Developing Countries’ (2015) 6 World Bank Legal Review 325; For a general overview
of implementing technology to the law of evidence see David Wotherspoon and Alex
Cameron, Electronic Evidence and E-Discovery (LexisNexis Canada 2010); On the
ramifications of technology to courts and judicial ethics, see Karen Eltis, Courts,
Litigants and the Digital Age: Law, Ethics and Practice (Irwin Law 2012).
4 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between
the courts of the Member States in the taking of evidence in civil or commercial
matters 2001; For an overview on the application of the Regulation see Vesna Rijavec,
Tomaž Keresteš and Tjaša Ivanc (eds), Dimensions of Evidence in European Civil
Procedure (Kluwer Law International 2016).
5 The first articles on ODR were published by Ethan Katsh as early as 1996. See Ethan
M Katsh, ‘Dispute Resolution in Cyberspace’ (1996) 28 Connecticut Law Review
20 Theoretical implications of dispute resolution technology