3.2 Reflections of rupture in dispute resolution
3.2.1 Emergence of private regimes
As suggested by the contextual approach advocated in the previous section, the
impact of dispute resolution technology should be evaluated based on the change
its implementation creates within the legal system. One of these consequences is
that the introduction of dispute resolution technology accelerates the emergence
of private regimes, as is the case with private ODR such as eBay’s Resolution
Center or chargeback procedures of credit card companies, both of which provide
redress mechanisms. Such alternative mechanisms of redress and enforcement
become essential when the national legal systems are unable to provide courtbased public enforcement for low-intensity disputes. The emergence of private
regimes and its connection with the increasing importance of technology form the
background for evaluating private enforcement.
The reason why private regimes are capable of providing redress where public
systems cannot is that they are not as bound to the nation-state as national court
systems by definition are. This means that private regimes are gaining more
momentum at the expense of the public regimes. The tension between private
and public, as well as other contradictions, are embedded in law, which is by no
means a harmonious system – the legal system’s function of upholding normative
expectations even when those grounded expectations are disappointed attests to
this. At times, this tension between public and private escalates into conflicts and
disputes, and the battle for hegemony becomes visible. Enabling, safeguarding
and reinterpreting these embedded tensions of the legal sphere are a central part
of law’s operation, of the ways in which autopoiesis is achieved.
Professor Thomas Schultz discusses legal pluralism by examining how private
Internet regimes become private legal systems by attaining normativity. Autonomous legal systems emerge when they acquire autonomous jurisdictional powers
of prescription, adjudication, and enforcement, which enable formal legal institutions to recognise it. By evaluating the prescriptive, adjudicative and enforcement
institutions of ICANN and eBay’s Resolution Center, he argues that they should
be recognised as autonomous private legal systems despite modern legal theory’s
close attachment to the concept of political sovereignty.
29 Schultz’s examination
explains how the tension between private and public is embedded in our understanding of law only in connection with the nation-state and how the emergence
of the Internet is contributing to this tension.
Similarly, the German legal scholar Günther Teubner discusses the conceptual
dominance of the nation-state in relation to debates on the legal nature of lex
mercatoria, the medieval body of commercial law applicable throughout Europe.
30
Teubner claims that lex mercatoria as a privately emerged legal system challenges
the close connection between law and state by enabling the formation of private
legal orders without state intervention. In addition to this ultimate challenge of the
state’s prescriptive power, lex mercatoria, by becoming de facto transnational, also
ascends the regional scope of the nation-state and the traditional method of
68 Theoretical implications of dispute resolution technology
3.2.1 Emergence of private regimes
As suggested by the contextual approach advocated in the previous section, the
impact of dispute resolution technology should be evaluated based on the change
its implementation creates within the legal system. One of these consequences is
that the introduction of dispute resolution technology accelerates the emergence
of private regimes, as is the case with private ODR such as eBay’s Resolution
Center or chargeback procedures of credit card companies, both of which provide
redress mechanisms. Such alternative mechanisms of redress and enforcement
become essential when the national legal systems are unable to provide courtbased public enforcement for low-intensity disputes. The emergence of private
regimes and its connection with the increasing importance of technology form the
background for evaluating private enforcement.
The reason why private regimes are capable of providing redress where public
systems cannot is that they are not as bound to the nation-state as national court
systems by definition are. This means that private regimes are gaining more
momentum at the expense of the public regimes. The tension between private
and public, as well as other contradictions, are embedded in law, which is by no
means a harmonious system – the legal system’s function of upholding normative
expectations even when those grounded expectations are disappointed attests to
this. At times, this tension between public and private escalates into conflicts and
disputes, and the battle for hegemony becomes visible. Enabling, safeguarding
and reinterpreting these embedded tensions of the legal sphere are a central part
of law’s operation, of the ways in which autopoiesis is achieved.
Professor Thomas Schultz discusses legal pluralism by examining how private
Internet regimes become private legal systems by attaining normativity. Autonomous legal systems emerge when they acquire autonomous jurisdictional powers
of prescription, adjudication, and enforcement, which enable formal legal institutions to recognise it. By evaluating the prescriptive, adjudicative and enforcement
institutions of ICANN and eBay’s Resolution Center, he argues that they should
be recognised as autonomous private legal systems despite modern legal theory’s
close attachment to the concept of political sovereignty.
29 Schultz’s examination
explains how the tension between private and public is embedded in our understanding of law only in connection with the nation-state and how the emergence
of the Internet is contributing to this tension.
Similarly, the German legal scholar Günther Teubner discusses the conceptual
dominance of the nation-state in relation to debates on the legal nature of lex
mercatoria, the medieval body of commercial law applicable throughout Europe.
30
Teubner claims that lex mercatoria as a privately emerged legal system challenges
the close connection between law and state by enabling the formation of private
legal orders without state intervention. In addition to this ultimate challenge of the
state’s prescriptive power, lex mercatoria, by becoming de facto transnational, also
ascends the regional scope of the nation-state and the traditional method of
68 Theoretical implications of dispute resolution technology