(WIPO) to resolve domain name disputes. Such a dispute may rise when a
complaint is filed that someone has registered in bad faith a domain name that
is confusingly similar to the complainant’s own trademark (also known in the US as
cybersquatting). The UDRP provides for a mandatory administrative proceeding in
domain name disputes. ICANN also upholds a list of approved providers of UDRP
resolution. At the time of writing, these are the Asian Domain Name Centre,
National Arbitration Forum, WIPO, the Czech Arbitration Court Arbitration
Center for Internet Disputes, and the Arab Center for Domain Name Dispute
Resolution.
46 The registrar does not intervene in the work of the administrative
panel and the UDRP resolution process does not prevent the parties from accessing a
court of jurisdiction. However, if the panel’s decision is rendered and no documentation about initiation of court proceedings is shown within 10 days, ICANN will
implement the decision to the domain name system.
47
ICANN enforces arbitral awards given in domain name disputes through its
authority over the domain name system, whereas blockchain applications of
cryptocurrencies give rise to self-enforcing programmable smart contracts, where
the contract executes contractual obligations, e.g. allocates money, once the
contractual terms are fulfilled. All these models of private enforcement have farreaching consequences for the legal system, as they provide new means of
coercion that do not rely on the state’s monopoly on violence.
The difficulty with chargebacks, trust marks and feedback systems is that they
do not speak in terms of law. Instead they follow the rationality of the market
place. In terms of systems theory, these operations are recognised through the
coding of the economic system, which is pay/not-pay, but they do not conform
to the coding of the legal system. Chargebacks come down to a reversal of an
earlier transaction and provide redress for an individual dispute. However,
chargebacks seldom extend to questions of damages. Also, trust marks and
feedbacks are communications of the economic system. Their decisive force for
the legal field does not convince the procedural researcher, although there is
value in additional courses of action. This lack of credibility can be explained by
the coding. The participant in the legal system does not recognise the redress
mechanisms that employ the coding of the economic system.
Although chargebacks, trust marks and feedback systems communicate about
law, about being alternatives to enforcement, the legal system does not recognise
them as valid, as belonging to itself. The paradox of law, the coercion it hides,
does not exist in these alternatives. They communicate about law but they do not
produce law. They might enter the legal system as facts (the fact that a payment
was reversed through chargeback has meaning for a later legal procedure) but
they are not independent operations within the system. The feedback system or
multilateral trust marks may facilitate commerce and increase trust and even
create better business practices, but in the end they are not the functional
equivalent of engaging law’s coercion. They follow a different rationality from
the inherent violence of law. Chargebacks come the closest, as the reversal of
payment does indeed return money to the buyer. But depending on the content
of the chargeback, these systems either present problems similar to private
Emerging crisis 75
complaint is filed that someone has registered in bad faith a domain name that
is confusingly similar to the complainant’s own trademark (also known in the US as
cybersquatting). The UDRP provides for a mandatory administrative proceeding in
domain name disputes. ICANN also upholds a list of approved providers of UDRP
resolution. At the time of writing, these are the Asian Domain Name Centre,
National Arbitration Forum, WIPO, the Czech Arbitration Court Arbitration
Center for Internet Disputes, and the Arab Center for Domain Name Dispute
Resolution.
46 The registrar does not intervene in the work of the administrative
panel and the UDRP resolution process does not prevent the parties from accessing a
court of jurisdiction. However, if the panel’s decision is rendered and no documentation about initiation of court proceedings is shown within 10 days, ICANN will
implement the decision to the domain name system.
47
ICANN enforces arbitral awards given in domain name disputes through its
authority over the domain name system, whereas blockchain applications of
cryptocurrencies give rise to self-enforcing programmable smart contracts, where
the contract executes contractual obligations, e.g. allocates money, once the
contractual terms are fulfilled. All these models of private enforcement have farreaching consequences for the legal system, as they provide new means of
coercion that do not rely on the state’s monopoly on violence.
The difficulty with chargebacks, trust marks and feedback systems is that they
do not speak in terms of law. Instead they follow the rationality of the market
place. In terms of systems theory, these operations are recognised through the
coding of the economic system, which is pay/not-pay, but they do not conform
to the coding of the legal system. Chargebacks come down to a reversal of an
earlier transaction and provide redress for an individual dispute. However,
chargebacks seldom extend to questions of damages. Also, trust marks and
feedbacks are communications of the economic system. Their decisive force for
the legal field does not convince the procedural researcher, although there is
value in additional courses of action. This lack of credibility can be explained by
the coding. The participant in the legal system does not recognise the redress
mechanisms that employ the coding of the economic system.
Although chargebacks, trust marks and feedback systems communicate about
law, about being alternatives to enforcement, the legal system does not recognise
them as valid, as belonging to itself. The paradox of law, the coercion it hides,
does not exist in these alternatives. They communicate about law but they do not
produce law. They might enter the legal system as facts (the fact that a payment
was reversed through chargeback has meaning for a later legal procedure) but
they are not independent operations within the system. The feedback system or
multilateral trust marks may facilitate commerce and increase trust and even
create better business practices, but in the end they are not the functional
equivalent of engaging law’s coercion. They follow a different rationality from
the inherent violence of law. Chargebacks come the closest, as the reversal of
payment does indeed return money to the buyer. But depending on the content
of the chargeback, these systems either present problems similar to private
Emerging crisis 75