strange interaction between the private and the public takes place within enforcement, in accessing enforcement. However, it is specifically at this stage where
private enforcement comes to the fore and shuffles the deck.
Privatisation of enforcement makes law’s inherent violence visible, reveals the
grounding paradox of law, makes it a good vantage point for examining the
disruptive qualities of technology. Privatisation of coercion connects with justification, as private enforcement mechanisms bypass the state’s monopoly on
violence, which forms the basis of national court systems as well as the focal
concept for modern understanding of law. The internal private enforcement
mechanism is not based on international Conventions or national legislation but
instead it leads its jurisdiction from user agreements and other consensual
models. Why, then, examine private enforcement as a procedural and theoretical
issue and not simply as a question of acceptable contract terms? There are two
reasons for this. Firstly, privatised enforcement is nevertheless use of force, even if
we call it by another name, and use of force has to be justified. Secondly, in the
absence of efficient public enforcement mechanisms, there is no actual choice
besides resorting to the offered private mechanisms, which calls to question how
consensual these mechanisms actually are.
40 This does not contest that there is a
question of contract law entwined within ODR, but private autonomy is very
much a part of ODR, as will be discussed in the following chapters.
Rather than claiming that private enforcement is one or the other, it is more
reasonable to state that both perspectives can be employed, but they produce
different types of information. Arguments about the importance of material
norms, pacta sunt servanda, or freedom of contract, cannot be countered but
they reveal another side of the reality of e-commerce. From this perspective, the
protection of the weaker party is guaranteed by the material norms of national
legislation on sale of goods. From the perspective of procedural law, protection
of a weaker party calls for procedural safeguards, which cannot be sufficiently
provided for in material norms on valid contract terms. If a standard contract
includes norms on the method of resolving disputes related to the activities
arising from the contract, then there is an element of procedure. Along the
element of procedure, come the requirements for access to justice. If there is a
private enforcement mechanism, there is use of force, which traditionally has
belonged to the nation-state. If the nation-state is bypassed, we need to ask who
caters for access to justice.
The contractual perspective might claim that corporate responsibility is a
sufficient tool for providing procedural protection. Access to justice can be
guaranteed by the horizontal effect of human rights, which requires the corporations to assume a role in protecting the effective realisation of human rights
alongside the states and individuals. The contractual lawyer has an interesting
point here, which however is not convincing to the procedural researcher. The
argument comes down to the liberalist argument that individual action on
protecting one’s own interests is profitable to the larger community. The claim
presupposes that the freely operating markets benefit society in its entirety and,
following this line of thought, the ODR industry standards would take care of
72 Theoretical implications of dispute resolution technology
private enforcement comes to the fore and shuffles the deck.
Privatisation of enforcement makes law’s inherent violence visible, reveals the
grounding paradox of law, makes it a good vantage point for examining the
disruptive qualities of technology. Privatisation of coercion connects with justification, as private enforcement mechanisms bypass the state’s monopoly on
violence, which forms the basis of national court systems as well as the focal
concept for modern understanding of law. The internal private enforcement
mechanism is not based on international Conventions or national legislation but
instead it leads its jurisdiction from user agreements and other consensual
models. Why, then, examine private enforcement as a procedural and theoretical
issue and not simply as a question of acceptable contract terms? There are two
reasons for this. Firstly, privatised enforcement is nevertheless use of force, even if
we call it by another name, and use of force has to be justified. Secondly, in the
absence of efficient public enforcement mechanisms, there is no actual choice
besides resorting to the offered private mechanisms, which calls to question how
consensual these mechanisms actually are.
40 This does not contest that there is a
question of contract law entwined within ODR, but private autonomy is very
much a part of ODR, as will be discussed in the following chapters.
Rather than claiming that private enforcement is one or the other, it is more
reasonable to state that both perspectives can be employed, but they produce
different types of information. Arguments about the importance of material
norms, pacta sunt servanda, or freedom of contract, cannot be countered but
they reveal another side of the reality of e-commerce. From this perspective, the
protection of the weaker party is guaranteed by the material norms of national
legislation on sale of goods. From the perspective of procedural law, protection
of a weaker party calls for procedural safeguards, which cannot be sufficiently
provided for in material norms on valid contract terms. If a standard contract
includes norms on the method of resolving disputes related to the activities
arising from the contract, then there is an element of procedure. Along the
element of procedure, come the requirements for access to justice. If there is a
private enforcement mechanism, there is use of force, which traditionally has
belonged to the nation-state. If the nation-state is bypassed, we need to ask who
caters for access to justice.
The contractual perspective might claim that corporate responsibility is a
sufficient tool for providing procedural protection. Access to justice can be
guaranteed by the horizontal effect of human rights, which requires the corporations to assume a role in protecting the effective realisation of human rights
alongside the states and individuals. The contractual lawyer has an interesting
point here, which however is not convincing to the procedural researcher. The
argument comes down to the liberalist argument that individual action on
protecting one’s own interests is profitable to the larger community. The claim
presupposes that the freely operating markets benefit society in its entirety and,
following this line of thought, the ODR industry standards would take care of
72 Theoretical implications of dispute resolution technology