One could contest the claim about emerging discrepancy by pointing out that
ODR has been extensively supported by state agenda and by public policysetting. According to this train of thought, the state support of ODR shows
that the traditional ideal model still applies and how the supremacy of the state
prevails. According to this position, the state exerts its own agenda over ODR
and claims it for its own. Thus, ODR would be simply an extension of state
power, a delegation of jurisdiction. This idea of delegation will be discussed in
further detail in Chapter 6. However, it is crucial to note here that private
enforcement does not fit this view, as the preservation of the traditional ideal
model would require the in casu control of procedural safeguards before accessing
enforcement.
4.1.2 Multifaceted implications of privatisation of coercion
We have established that the traditional ideal model, which reflects the current
doctrine of procedural law, is challenged by private enforcement. However, the
implications of privatisation of justice cannot be reduced simply to private enforcement. Instead, private enforcement is only one, although perhaps the most
pronounced, implication of the gradual decline of the traditional model.
Other characteristics of privatisation also contribute to the justificatory
challenge: the lack of public precedents and the increase in the number of cases
that are left outside the public courts for various reasons. These phenomena are
not new and they have already been addressed in the wake of ADR. In this
section, these issues are discussed briefly in order to elaborate the complexity of
the justificatory crisis and to demonstrate how private enforcement is just the
latest chapter in the story of privatisation. In other words, implementation of
ICT into dispute resolution also escalates other existing discrepancies. This
multiformity of the justificatory crisis means that a simple revision of the traditional
model is not in itself sufficient to overcome the justificatory crisis.
Firstly, the lack of precedents is relevant to the justification of dispute resolution. Private dispute resolution models produce decisions which do not provide
for judicial precedents in the same way as decisions of state courts. This is a
question of law’s continuous self-renewal as well as an issue of societal values.
How do we provide for equal treatment before the law if procedures and their
outcomes are not public and do not contribute to law’s renewal? Is this lack of
precedents a reason to restrict private resolution methods or is this deficiency
remediable?
As private dispute resolution often takes place outside the courts, the highest
national court instances are seldom able to guide these processes through
precedents. However, precedents may be given when decisions reached in private
dispute resolution enter the courts for accessing enforcement. Still, non-adjudicative
processes such as mediation do not necessarily strive for enforceable decisions but
focus on settling the disputes amicably.
However, several arguments contest the claim that private dispute resolution
does not produce precedents.
1 In the arbitration community, the case law of
92 Three quests for justification
ODR has been extensively supported by state agenda and by public policysetting. According to this train of thought, the state support of ODR shows
that the traditional ideal model still applies and how the supremacy of the state
prevails. According to this position, the state exerts its own agenda over ODR
and claims it for its own. Thus, ODR would be simply an extension of state
power, a delegation of jurisdiction. This idea of delegation will be discussed in
further detail in Chapter 6. However, it is crucial to note here that private
enforcement does not fit this view, as the preservation of the traditional ideal
model would require the in casu control of procedural safeguards before accessing
enforcement.
4.1.2 Multifaceted implications of privatisation of coercion
We have established that the traditional ideal model, which reflects the current
doctrine of procedural law, is challenged by private enforcement. However, the
implications of privatisation of justice cannot be reduced simply to private enforcement. Instead, private enforcement is only one, although perhaps the most
pronounced, implication of the gradual decline of the traditional model.
Other characteristics of privatisation also contribute to the justificatory
challenge: the lack of public precedents and the increase in the number of cases
that are left outside the public courts for various reasons. These phenomena are
not new and they have already been addressed in the wake of ADR. In this
section, these issues are discussed briefly in order to elaborate the complexity of
the justificatory crisis and to demonstrate how private enforcement is just the
latest chapter in the story of privatisation. In other words, implementation of
ICT into dispute resolution also escalates other existing discrepancies. This
multiformity of the justificatory crisis means that a simple revision of the traditional
model is not in itself sufficient to overcome the justificatory crisis.
Firstly, the lack of precedents is relevant to the justification of dispute resolution. Private dispute resolution models produce decisions which do not provide
for judicial precedents in the same way as decisions of state courts. This is a
question of law’s continuous self-renewal as well as an issue of societal values.
How do we provide for equal treatment before the law if procedures and their
outcomes are not public and do not contribute to law’s renewal? Is this lack of
precedents a reason to restrict private resolution methods or is this deficiency
remediable?
As private dispute resolution often takes place outside the courts, the highest
national court instances are seldom able to guide these processes through
precedents. However, precedents may be given when decisions reached in private
dispute resolution enter the courts for accessing enforcement. Still, non-adjudicative
processes such as mediation do not necessarily strive for enforceable decisions but
focus on settling the disputes amicably.
However, several arguments contest the claim that private dispute resolution
does not produce precedents.
1 In the arbitration community, the case law of
92 Three quests for justification