formulating cross-border rules by international politics.
31 According to Teubner,
lex mercatoria locates itself in the periphery of law and thus finds its dynamic
stability by means other than creating a centre, which is typically a practice of
national legislation. Such differences between private regimes and national legal
systems are not necessarily defects; they are simply differences.
32
In addition, Teubner addresses the collision between law and technology that
results from differences in their scope of application; law as we understand it is
closely interlinked with the political system of the nation-state, whereas technology
forms a global system. These self-producing subsystems of society, such as technology, compete with the politics of nation-states in the formulation of a global
autonomous society.
33 This interpretation explains why the increasing privatisation
of coercion that results from the use of dispute resolution technology is problematic from the perspective of the legal system, as the two systems are not
compatible, the tensions between private and public, global and regional, unreconciled. The social implications of legal privatisation are not easy to predict, as the
American law professor Elizabeth Thornburg demonstrates in her assessment of
different forms of privatisation. By examining ICANN, notice-and-take-down of
websites, digital rights management, and mandatory B2C arbitration, she points
out that privatisation does not automatically hamper the rights of either party.
However, she finds that privatised systems do transfer procedural advantage to one
party and ‘circumvent meaningful due process protections that are implicit in a
court of law’.
34 Thornburg’s analysis seems to suggest that the perspective of
dispute resolution rather than material law may prove to be a fruitful vantage point
for evaluating the tension between private regimes and public legal systems.
3.2.2 Why enforcement matters in dispute resolution
Why should we approach dispute resolution technology through the tension
between private and public, through privatisation of coercion? As enforcement is
at the core of sovereign power and its privatisation is contradictory from the
perspective of nation-state law, privatisation of coercion can reveal the essence of
technological change. Technology-driven private enforcement calls attention to
the ways in which legal practices are changing and how this change impacts our
understanding of law. In short, use of force is the window through which the
disruptive qualities of dispute resolution technology can be observed.
The Oxford Dictionary defines enforcement as ‘the act of compelling observance of or compliance with a law, rule, or obligation’.
35 This definition sheds
light to the most interesting element of enforcement, i.e. to compelling compliance. In layman’s terms enforcement may refer both to law enforcement and to
enforcing judgments or rights. From the internal perspective of the legal system,
enforcement may present itself simply as the technical implementation of a
decision, where the resolution process carries more weight than the after-treatment.
As the possibility of coercion is an instrumental part of the legal system, enforcement
is well established in the doctrine – to the point where its exact definition is seldom
discussed or problematised. In its recommendation on enforcement, the Committee
Emerging crisis 69
31 According to Teubner,
lex mercatoria locates itself in the periphery of law and thus finds its dynamic
stability by means other than creating a centre, which is typically a practice of
national legislation. Such differences between private regimes and national legal
systems are not necessarily defects; they are simply differences.
32
In addition, Teubner addresses the collision between law and technology that
results from differences in their scope of application; law as we understand it is
closely interlinked with the political system of the nation-state, whereas technology
forms a global system. These self-producing subsystems of society, such as technology, compete with the politics of nation-states in the formulation of a global
autonomous society.
33 This interpretation explains why the increasing privatisation
of coercion that results from the use of dispute resolution technology is problematic from the perspective of the legal system, as the two systems are not
compatible, the tensions between private and public, global and regional, unreconciled. The social implications of legal privatisation are not easy to predict, as the
American law professor Elizabeth Thornburg demonstrates in her assessment of
different forms of privatisation. By examining ICANN, notice-and-take-down of
websites, digital rights management, and mandatory B2C arbitration, she points
out that privatisation does not automatically hamper the rights of either party.
However, she finds that privatised systems do transfer procedural advantage to one
party and ‘circumvent meaningful due process protections that are implicit in a
court of law’.
34 Thornburg’s analysis seems to suggest that the perspective of
dispute resolution rather than material law may prove to be a fruitful vantage point
for evaluating the tension between private regimes and public legal systems.
3.2.2 Why enforcement matters in dispute resolution
Why should we approach dispute resolution technology through the tension
between private and public, through privatisation of coercion? As enforcement is
at the core of sovereign power and its privatisation is contradictory from the
perspective of nation-state law, privatisation of coercion can reveal the essence of
technological change. Technology-driven private enforcement calls attention to
the ways in which legal practices are changing and how this change impacts our
understanding of law. In short, use of force is the window through which the
disruptive qualities of dispute resolution technology can be observed.
The Oxford Dictionary defines enforcement as ‘the act of compelling observance of or compliance with a law, rule, or obligation’.
35 This definition sheds
light to the most interesting element of enforcement, i.e. to compelling compliance. In layman’s terms enforcement may refer both to law enforcement and to
enforcing judgments or rights. From the internal perspective of the legal system,
enforcement may present itself simply as the technical implementation of a
decision, where the resolution process carries more weight than the after-treatment.
As the possibility of coercion is an instrumental part of the legal system, enforcement
is well established in the doctrine – to the point where its exact definition is seldom
discussed or problematised. In its recommendation on enforcement, the Committee
Emerging crisis 69