Of course, some disputes that undergo a private resolution process may be
taken to the public courts later on. This option may be limited in some
situations, for example when there is an arbitral clause. In any case, the actual
possibilities of taking a dispute to public courts may be close to non-existent in
many low-intensity cases.
When decisions are put into action through private enforcement, there is no
case-by-case state control of due process before enforcement. Such recognition
procedures are needless when decisions can effectively be enforced without the
state’s enforcement mechanism. Instead, the online dispute resolution (ODR)
decision may be enforced without resorting to the state’s monopoly on
violence if the ODR provider has its own integrated mechanism for forcing
compliance. Simultaneously, the state’s monopoly on coercion comes under
threat as the question arises whether there still is a state monopoly on
violence.
It should be noted that the shortcomings of the traditional ideal model
present themselves primarily in the context of cross-border cases. This does
not mean, however, that the traditional model is unproblematic on the national
level as private enforcement also bypasses state control on enforcement in
domestic cases.
However, the picture is not so dark for the political agenda of the state as
this would lead us to believe. At least at this point, most ODR providers
that have the means to create a private enforcement mechanism are situated
within the territorial jurisdiction of some state or other. That is to say, they
are legal entities that have to follow the material norms of their place of
domicile. However, the protection provided through material norms on a
general level does not measure up with the in casu protection provided
by state control. The state control is ex post inasmuch as it evaluates the
quality of the procedure where the decision is rendered. In other words,
the control is exerted after the dispute is resolved. Simultaneously, this state
control is ex ante in that it precedes accessing the enforcement. As discussed
in Chapter 3, the argument for contractualisation of dispute resolution is
not plausible.
In addition, the ODR provider does not need to follow the minimum due
process standards simply for the purpose of accessing enforcement. This does
not mean that there are no other motivations for making the ODR process fair.
The use of a platform may depend on how well its resolution procedure is
organised. As there is competition on the market, a badly functioning redress
mechanism might drive sellers and buyers to other platforms. This connects
with independent reputational systems and soft law instruments for corporate
responsibility. However, the state’s role is different in private enforcement from
that in the traditional model regardless of these market-based reasons for
introducing due process.
The change in the state’s role may be demonstrated with the following graph
(Figure 4.3):
90 Three quests for justification
taken to the public courts later on. This option may be limited in some
situations, for example when there is an arbitral clause. In any case, the actual
possibilities of taking a dispute to public courts may be close to non-existent in
many low-intensity cases.
When decisions are put into action through private enforcement, there is no
case-by-case state control of due process before enforcement. Such recognition
procedures are needless when decisions can effectively be enforced without the
state’s enforcement mechanism. Instead, the online dispute resolution (ODR)
decision may be enforced without resorting to the state’s monopoly on
violence if the ODR provider has its own integrated mechanism for forcing
compliance. Simultaneously, the state’s monopoly on coercion comes under
threat as the question arises whether there still is a state monopoly on
violence.
It should be noted that the shortcomings of the traditional ideal model
present themselves primarily in the context of cross-border cases. This does
not mean, however, that the traditional model is unproblematic on the national
level as private enforcement also bypasses state control on enforcement in
domestic cases.
However, the picture is not so dark for the political agenda of the state as
this would lead us to believe. At least at this point, most ODR providers
that have the means to create a private enforcement mechanism are situated
within the territorial jurisdiction of some state or other. That is to say, they
are legal entities that have to follow the material norms of their place of
domicile. However, the protection provided through material norms on a
general level does not measure up with the in casu protection provided
by state control. The state control is ex post inasmuch as it evaluates the
quality of the procedure where the decision is rendered. In other words,
the control is exerted after the dispute is resolved. Simultaneously, this state
control is ex ante in that it precedes accessing the enforcement. As discussed
in Chapter 3, the argument for contractualisation of dispute resolution is
not plausible.
In addition, the ODR provider does not need to follow the minimum due
process standards simply for the purpose of accessing enforcement. This does
not mean that there are no other motivations for making the ODR process fair.
The use of a platform may depend on how well its resolution procedure is
organised. As there is competition on the market, a badly functioning redress
mechanism might drive sellers and buyers to other platforms. This connects
with independent reputational systems and soft law instruments for corporate
responsibility. However, the state’s role is different in private enforcement from
that in the traditional model regardless of these market-based reasons for
introducing due process.
The change in the state’s role may be demonstrated with the following graph
(Figure 4.3):
90 Three quests for justification