enforcement, i.e. the issue of making a normative decision and enforcing it
without the ex post control of due process, or they are reduced into payment
mechanisms with additional fees for certain types of behaviour.
Unlike the other alternatives, both options of enforcing ODR decisions as
arbitral awards and private enforcement mechanisms are interesting for the legal
system. Both these models employ the familiar code through which the legal
system recognises them as belonging to its sphere. Although both options are
relatively new phenomena, mostly unregulated, the legal system recognises the
element that makes these operations communications about law. Both of these
models are communication about law but also produce legally interesting communication. They are about upholding expectations, regardless of what the legal
system decides to do with them. In other words, these are legal phenomena and
it does not matter whether we come to the conclusion that ODR is arbitration or
that it is not, or whether private enforcement is allowed or not. Even if the
programmes within the legal system decide that the side of ‘illegal’ will be applied
to these, they are relevant communication about law. They are irritants, impulses,
mutineers that demand action from the legal system. Using Luhmann’s language,
such irritants are vital for the future development of the legal system, as they
bring new elements for the autopoiesis. The legal system faces two options.
Either it is able to cope with the irritation and improve its immune system by
addressing such demands, or it ceases to exist.
48
Excursion 1: The case of eBay’s user agreement
Private enforcement mechanisms base their jurisdiction on consent of the parties,
which is often given by the acceptance of the user agreement. Acceptance of the
standard contract terms is the condition for using the service. In eBay’s case both
sellers and buyers are required to accept the user agreement and obey its rules on
private enforcement before commencing commerce on the market place. Interestingly enough, eBay’s Resolution Center, which renders the decision concerning
a dispute that has arisen on the marketplace, was reworded as Money Back
Guarantee around 2014. Despite the rewording in the user agreement, eBay’s
Resolution Center still exists and renders decisions on the Money Back Guarantee,
although the Resolution Center is no longer mentioned in contractual terms.
Hence, the Money Back Guarantee corresponds to the internal enforcement
mechanism of the Resolution Center.
It should be noted that eBay is not simply a market place with an add-on
Resolution Center/Money Back Guarantee for buyer protection. In addition to
providing an e-commerce platform for sellers and buyers, eBay has access to the
world’s largest Internet payment company, PayPal, which has been a subsidiary of
eBay since 2002.
49 The combination of access to the payment method and
internal dispute resolution procedure is necessary for producing an effective
private enforcement mechanism.
By the user’s acceptance of the user agreement of 1 November 2017, eBay has
the user’s permission to make the final decision on whether or not a buyer is
76 Theoretical implications of dispute resolution technology
without the ex post control of due process, or they are reduced into payment
mechanisms with additional fees for certain types of behaviour.
Unlike the other alternatives, both options of enforcing ODR decisions as
arbitral awards and private enforcement mechanisms are interesting for the legal
system. Both these models employ the familiar code through which the legal
system recognises them as belonging to its sphere. Although both options are
relatively new phenomena, mostly unregulated, the legal system recognises the
element that makes these operations communications about law. Both of these
models are communication about law but also produce legally interesting communication. They are about upholding expectations, regardless of what the legal
system decides to do with them. In other words, these are legal phenomena and
it does not matter whether we come to the conclusion that ODR is arbitration or
that it is not, or whether private enforcement is allowed or not. Even if the
programmes within the legal system decide that the side of ‘illegal’ will be applied
to these, they are relevant communication about law. They are irritants, impulses,
mutineers that demand action from the legal system. Using Luhmann’s language,
such irritants are vital for the future development of the legal system, as they
bring new elements for the autopoiesis. The legal system faces two options.
Either it is able to cope with the irritation and improve its immune system by
addressing such demands, or it ceases to exist.
48
Excursion 1: The case of eBay’s user agreement
Private enforcement mechanisms base their jurisdiction on consent of the parties,
which is often given by the acceptance of the user agreement. Acceptance of the
standard contract terms is the condition for using the service. In eBay’s case both
sellers and buyers are required to accept the user agreement and obey its rules on
private enforcement before commencing commerce on the market place. Interestingly enough, eBay’s Resolution Center, which renders the decision concerning
a dispute that has arisen on the marketplace, was reworded as Money Back
Guarantee around 2014. Despite the rewording in the user agreement, eBay’s
Resolution Center still exists and renders decisions on the Money Back Guarantee,
although the Resolution Center is no longer mentioned in contractual terms.
Hence, the Money Back Guarantee corresponds to the internal enforcement
mechanism of the Resolution Center.
It should be noted that eBay is not simply a market place with an add-on
Resolution Center/Money Back Guarantee for buyer protection. In addition to
providing an e-commerce platform for sellers and buyers, eBay has access to the
world’s largest Internet payment company, PayPal, which has been a subsidiary of
eBay since 2002.
49 The combination of access to the payment method and
internal dispute resolution procedure is necessary for producing an effective
private enforcement mechanism.
By the user’s acceptance of the user agreement of 1 November 2017, eBay has
the user’s permission to make the final decision on whether or not a buyer is
76 Theoretical implications of dispute resolution technology