Three Quests for Justification in the ODR Era: Sovereignty, Contract and Quality Standards

Research output: Contribution to journalArticleScientificpeer-review

Abstract

The interests of state sovereignty are preserved in conflict management by adopting a state monopoly for resolving disputes as the descriptive and constitutive concepts of a resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts arising on its soil — in other words, within the state’s territorial jurisdiction, which also forms the basis of international procedural law. This conceptual practice is derived from the social contract theories of Hobbes and Locke. However, this type of monopoly is disintegrating in the era of the internet because it fails to provide an effective resolution method for online disputes, and, consequently, online dispute resolution has become the mainstream solution. This raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether sovereignty as a whole is still a viable background principle for procedural law.

Integrating technology into dispute resolution has implications on the fundamental justification of state intervention in private conflicts as well as on the argumentation structure of due process in general and on concrete interpretive issues arising from individual cases. This paper strives to explain state interests in dispute resolution and how justification is created, reinterpreted and grounded in the changing environment of dispute resolution. This discussion connects the emergence of online dispute resolution (ODR) with larger social and legal changes often described through legal pluralism and increasing legal regulation. State intervention is executed through adopting state monopoly as the theoretical starting point, where sovereignty plays a significant role as a justificatory principle. However, sovereignty, formulated as the state monopoly of conflict management, brings the political ideal and the agenda of the modern nation- state into dispute resolution.

The procedural law doctrine has mainly neglected the formulation of a coherent theory common to all dispute resolution. As demonstrated by the prolific rise of ODR and the European Union’s (EU) attempt to regulate ODR models, new justificatory concepts are needed in order to better understand the state’s role in the future of dispute resolution. One option is to redefine sovereignty as interdependence; but, such interpretation carries the same state agenda in its wake. Another option is to find the justification in due process rules, which emphasizes the growing importance of procedure over material rules.

Translated title of the contributionKolme polkua justifikaatioon ODR-aikakaudella: suvereenisuus, sopimus ja sisältö
Original languageEnglish
Article numberVol 19, Issue 1
JournalLex Electronica
Volume19
Issue number1
Pages (from-to)43-71
Number of pages29
Publication statusPublished - Dec 2014
MoE publication typeA1 Journal article-refereed

Fields of Science

  • 513 Law

Cite this

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title = "Three Quests for Justification in the ODR Era: Sovereignty, Contract and Quality Standards",
abstract = "The interests of state sovereignty are preserved in conflict management by adopting a state monopoly for resolving disputes as the descriptive and constitutive concepts of a resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts arising on its soil — in other words, within the state’s territorial jurisdiction, which also forms the basis of international procedural law. This conceptual practice is derived from the social contract theories of Hobbes and Locke. However, this type of monopoly is disintegrating in the era of the internet because it fails to provide an effective resolution method for online disputes, and, consequently, online dispute resolution has become the mainstream solution. This raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether sovereignty as a whole is still a viable background principle for procedural law. Integrating technology into dispute resolution has implications on the fundamental justification of state intervention in private conflicts as well as on the argumentation structure of due process in general and on concrete interpretive issues arising from individual cases. This paper strives to explain state interests in dispute resolution and how justification is created, reinterpreted and grounded in the changing environment of dispute resolution. This discussion connects the emergence of online dispute resolution (ODR) with larger social and legal changes often described through legal pluralism and increasing legal regulation. State intervention is executed through adopting state monopoly as the theoretical starting point, where sovereignty plays a significant role as a justificatory principle. However, sovereignty, formulated as the state monopoly of conflict management, brings the political ideal and the agenda of the modern nation- state into dispute resolution.The procedural law doctrine has mainly neglected the formulation of a coherent theory common to all dispute resolution. As demonstrated by the prolific rise of ODR and the European Union’s (EU) attempt to regulate ODR models, new justificatory concepts are needed in order to better understand the state’s role in the future of dispute resolution. One option is to redefine sovereignty as interdependence; but, such interpretation carries the same state agenda in its wake. Another option is to find the justification in due process rules, which emphasizes the growing importance of procedure over material rules.",
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Three Quests for Justification in the ODR Era: Sovereignty, Contract and Quality Standards. / Koulu, Riikka.

In: Lex Electronica, Vol. 19, No. 1, Vol 19, Issue 1, 12.2014, p. 43-71.

Research output: Contribution to journalArticleScientificpeer-review

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