‘digital’ describes the technical execution of signal transmission: digital signals
present information in discontinuous, discreet format, and are contrasted with
continuous analogue signals. At best, this distinction is irrelevant for examining
the implications of technology use such as private enforcement, and at worst,
confusing, as signals can be translated from analogue to digital.
57 Instead, the
societal transformation of digitalisation is more accurately defined by the
immense increases in computational power that digital signal processing enables.
Interestingly enough, computation per se does not presuppose digital information
processing – in fact, mechanical equipment has been used for computational
purposes from rudimentary abacuses to the sophisticated design for a mechanical
general-purpose computer presented by the English mathematician Charles
Babbage as early as 1837. Computational power, however, enables the expanding
use of computation in new fields, and intensifying automation of information
processing, which contribute to societal transformations of digitalisation.
58
This means that the terminology ‘digital technologies’ does not provide a
useful description of the scope of this study. However, we are not addressing all
potential technologies, but are interested in information and communication
technologies and their use in dispute resolution. Some of these ICT applications
are data-driven but not all, and some rely heavily on automation, while others tap
into the potential of the Internet to provide instant communication regardless of
time and space. As no single communality between different applications of ICT
in dispute resolution can be found beyond their reliance on computational
power, they are simply referred to here as dispute resolution technology.
Surprisingly, dispute resolution technology has gained only minor attention,
although some applications are discussed and evaluated extensively. Even legislation policy documents that regulate and direct the use of technology in dispute
resolution offer little support for formulating an overview of what exactly is
meant by it. This definition deficit is most likely the result of a more functional
orientation where the emphasis is placed on the tasks entrusted to technology
rather than to its formal definition.
For example, the EU’s ODR Regulation (524/2013) does not include a
definition of ODR or even mention technology. However, in the recitals the
lack of efficient electronic means for dispute resolution is acknowledged and
remedied by the establishment of an EU-wide ODR platform, which ‘should take
the form of an interactive website offering a single point of entry to consumers
and traders seeking to resolve disputes out-of-court which have arisen from
online transactions’. The platform should provide information on out-of-court
resolution arising from online sales and services and means for submitting claims
in all official languages, direct the claims to competent national alternative
dispute resolution (ADR) entities and provide case management tools. These
functionalities are described in further detail in Article 5 of the Regulation, which
also stipulates that the platform should be user-friendly. In short, the Regulation
describes the specific functions and desired objectives of the platform but nothing
is stated about the role of technology or how it should be implemented.
Naturally, such examinations cannot be considered mandatory for legislative
Understanding law and technology 41
present information in discontinuous, discreet format, and are contrasted with
continuous analogue signals. At best, this distinction is irrelevant for examining
the implications of technology use such as private enforcement, and at worst,
confusing, as signals can be translated from analogue to digital.
57 Instead, the
societal transformation of digitalisation is more accurately defined by the
immense increases in computational power that digital signal processing enables.
Interestingly enough, computation per se does not presuppose digital information
processing – in fact, mechanical equipment has been used for computational
purposes from rudimentary abacuses to the sophisticated design for a mechanical
general-purpose computer presented by the English mathematician Charles
Babbage as early as 1837. Computational power, however, enables the expanding
use of computation in new fields, and intensifying automation of information
processing, which contribute to societal transformations of digitalisation.
58
This means that the terminology ‘digital technologies’ does not provide a
useful description of the scope of this study. However, we are not addressing all
potential technologies, but are interested in information and communication
technologies and their use in dispute resolution. Some of these ICT applications
are data-driven but not all, and some rely heavily on automation, while others tap
into the potential of the Internet to provide instant communication regardless of
time and space. As no single communality between different applications of ICT
in dispute resolution can be found beyond their reliance on computational
power, they are simply referred to here as dispute resolution technology.
Surprisingly, dispute resolution technology has gained only minor attention,
although some applications are discussed and evaluated extensively. Even legislation policy documents that regulate and direct the use of technology in dispute
resolution offer little support for formulating an overview of what exactly is
meant by it. This definition deficit is most likely the result of a more functional
orientation where the emphasis is placed on the tasks entrusted to technology
rather than to its formal definition.
For example, the EU’s ODR Regulation (524/2013) does not include a
definition of ODR or even mention technology. However, in the recitals the
lack of efficient electronic means for dispute resolution is acknowledged and
remedied by the establishment of an EU-wide ODR platform, which ‘should take
the form of an interactive website offering a single point of entry to consumers
and traders seeking to resolve disputes out-of-court which have arisen from
online transactions’. The platform should provide information on out-of-court
resolution arising from online sales and services and means for submitting claims
in all official languages, direct the claims to competent national alternative
dispute resolution (ADR) entities and provide case management tools. These
functionalities are described in further detail in Article 5 of the Regulation, which
also stipulates that the platform should be user-friendly. In short, the Regulation
describes the specific functions and desired objectives of the platform but nothing
is stated about the role of technology or how it should be implemented.
Naturally, such examinations cannot be considered mandatory for legislative
Understanding law and technology 41