Dispute Resolution and Technology: Revisiting the Justification of Conflict Management

Julkaisun otsikon käännös: Riidanratkaisu ja teknologia: Konfliktinhallinnan oikeutusta etsimässä

Tutkimustuotos: OpinnäyteVäitöskirjaMonografia

Abstrakti

This study, Dispute Resolution and Technology: Revisiting the Justification of Conflict Management, belongs to the fields of procedural law, legal theory and law and technology studies. In this study the changes in dispute resolution caused by technology are evaluated. The overarching research question of this study is how does implementing technology to dispute resolution challenge the justification of law as a legitimised mode of violence? Before answering such an abstract research question it is necessary to examine 1) how we should understand technology in the context of dispute resolution, and 2) how technology changes our perception of dispute resolution.

In this study, I examine different forms of private enforcement enabled by technology using this phenomenon as an example of the changes in justification caused by the implementation of modern information and communication technology (ICT) to dispute resolution. The use of ICT connects with dispute resolution at three intersections: courtroom technology, online dispute resolution (ODR), and disputes about technology, the first two of which are discussed in this study. I claim that the implementation of technology in dispute resolution creates a discrepancy in the ways in which we have justified the establishment, function and appearances of dispute resolution. This discrepancy becomes visible in private enforcement of e-commerce sites and in self-executing smart contracts based on cryptocurrency infrastructure, as no judicial control of due process can be extended to these private forms of coercion.


This study consists of three parts. In the first part I examine the theoretical implications of technology in dispute resolution. Answers to the first of the preliminary questions are sought from media theory: from Marshall McLuhan’s technological determinism and Raymond Williams’s social construction of technology as well as from Friedrich Kittler’s agency of technology. The second preliminary question is answered by discussing the converging models of dispute resolution. In this discussion, I suggest abandoning the doctrinal distinction between courtroom technology and ODR. Implementing technology brings public and private dispute resolution closer to each other in many aspects, and even to the point of convergence.

In the second part I exemplify the disruptive power of ICT through private enforcement, which challenges the nation-state’s monopoly on violence. Although implementation of ICT cannot be reduced to private enforcement, privatisation of coercion provides a vantage point for evaluating the multifaceted changes brought on by globalisation and the privatisation of law. I identify and discuss three different justificatory narratives that have been employed to justify dispute resolution: sovereignty, consent, and access to justice. These narratives are structures within the legal system formed by continuous operations that are shared with other societal subsystems through structural couplings. The justificatory force of each narrative is tested against the challenge of private enforcement. This analysis shows that private enforcement enabled by technology causes problems to justification, as none of the existing justificatory narratives provides an explanation of its existence.

In the third part of the study I briefly examine the co-operation between different justificatory narratives. In addition to this, I address the possibilities of finding justification through the technological infrastructure itself, a conceptualisation which follows Lawrence Lessig’s argument of code as law.

The main claim of this doctoral dissertation is that none of the discussed justificatory narratives are able to address the challenge brought on by private enforcement. On a practical level this means that it is unclear, how a sufficient level of protection of due process can be extended to private enforcement without judicial control at the enforcement stage. This challenge is rendered even more difficult by the transnational nature of dispute resolution technology. In conclusion, private enforcement constitutes a new grey area of conflict management between legal and illegal.
Julkaisun otsikon käännösRiidanratkaisu ja teknologia: Konfliktinhallinnan oikeutusta etsimässä
Alkuperäiskielienglanti
JulkaisupaikkaHelsinki
Kustantaja
Painoksen ISBN978-952-10-7036-5
Sähköinen ISBN978-951-51-8266-1
DOI - pysyväislinkit
TilaJulkaistu - syysk. 2016
OKM-julkaisutyyppiG4 Tohtorinväitöskirja (monografia)

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