Law, Technology and Dispute Resolution

The Privatisation of Coercion (Open Access)

Riikka Koulu

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351370394
• Edition: 1
• Topic: Business
• Subtopic: Business Law
• Index: Business

The use of new information and communication technologies both inside the courts and in private online dispute resolution services is quickly changing everyday conflict management. However, the implications of the increasingly disruptive role of technology in dispute resolution remain largely undiscussed. In this book, assistant professor of law and digitalisation Riikka Koulu examines the multifaceted phenomenon of dispute resolution technology, focusing specifically on private enforcement, which modern technology enables on an unforeseen scale. The increase in private enforcement confounds legal structures and challenges the nation-state's monopoly on violence. And, in this respect, the author argues that the technology-driven privatisation of enforcement – from direct enforcement of e-commerce platforms to self-executing smart contracts in the blockchain – brings the ethics of law's coercive nature out into the open. This development constitutes a new, and dangerous, grey area of conflict management, which calls for transparency and public debate on the ethical implications of dispute resolution technology.

Part I

Theoretical implications of dispute resolution technology

1 Introduction

1.1 The past and future of law and technology?

Between 1811 and 1816 in North of England owners of textile mills found themselves facing a Luddite uprising. The rioters borrowed their name from General Ned Ludd, who supposedly had broken stocking frames in anger in 1779 and was claimed to have led the riot from Sherwood forest. The frustrated textile workers saw no alternative to violent protest against the rapid changes in production mechanisms that had left them unable to provide for their families. As the situation grew worse and societal stability came under threat, legislation was harnessed to restrain the uprising by increasing the penalties for attacks against the manufacturing houses and equipment. According to the UK’s Frame-Breaking Act of 1812 (officially The Destruction of Stocking Frames, etc.), all crimes against the machines were punishable by death:

‘If any person or persons shall, by Day or by Night, enter by Force into any House, Shop or Place, with an Intent to cut or destroy any Framework knitted Pieces, Stockings or Lace, or other Articles or Goods being in the Frame, or upon any Machine or Engine thereto annexed, or therewith to be used or prepared for that Purpose; … or shall willfully and maliciously, and without having the Consent or Authority of the Owner, break and destroy any Machinery contained in any Mill or Mills used or any way employed in preparing or spinning of Wool or Cotton, or other Materials for the use of the Stocking or Lace Manufactory, every Offender being thereof lawfully convicted shall be adjudged guilty of Felony, and shall suffer Death, as in cases of Felony without Benefit of Clergy.’

What really happened in England during the first decades of the nineteenth century to invoke the need for such drastic legislative measures? It was not simply the introduction of new technology, although one can pinpoint important milestones on the road to the invention of the spinning jenny or the steam engine. Instead, the social implications linked with technological innovations led to the changes in manufacturing, which can be described as the automation of routine manual labour. The interplay between society, law and technology gave rise to tensions that burst into violence.

Now, in the twenty-first century, ‘Luddite’ has become a pejorative word for describing someone who resists technological change. Neoluddites are seen as old-fashioned fools who are unable to find any reason, other than their own inability, to oppose technological innovation. However, a look into history reveals that the original Luddites did not object to advances in technology as such, but to the social implications inherent in the mechanisation of manual labour, which left them unemployed and on the verge of famine.

Two hundred years later we are talking about a new chapter in automation, namely that of non-routine cognitive labour. We are amidst a change the impact of which expands into the established field of law. The question that arises is, how should we react to the shifts in the legal system brought on by technology, especially those transforming the core of many legal practices, dispute resolution? Should we become luddites and claim ownership of the term, and, in a bid to preserve the fundamental elements of our old-established practices in the name of justice, break the new frames of technology? Or are we to embrace the change, come to grips with it, define its nature, to create a frame for technology inside law? In order to find answers, we must first understand what are the implications of this complex and multifaceted change created by the interplay between law, technology and society. Grasping the meaning of change, especially the meaning of technological change within an established, long-lasting, and authoritative field of law, requires a leap of faith. In order to see beyond the devastating threats of technology painted by the technophobes and the infinite possibilities preached by the technophiles, we need to place technological innovation in its historical context to define how the current disruptive trends affect the application of law.

This is a book about on-going technological change in the society, about digitalisation of legal practices, and about the impact that digital technologies have on the most quintessential of legal practices, dispute resolution. I claim that the implementation of digital technologies in dispute resolution creates a discrepancy in the ways in which we have justified the establishment, function, and appearances of dispute resolution. In pursuing an understanding of technology in dispute resolution, we enter a world of many questions and few answers.¹ This objective connects with the wider inquiry into what exactly technological disruption² means for the legal system. Over recent years disruption has become almost synonymous with technological innovation, and, although it is probable that data analytics, AI applications such as neural networks and machine learning as well as increasing automation will alter the legal profession’s working methods, it remains open to what extent these emerging technologies will, in fact, disrupt the essence of legal practice. However, one consequence of legal technologies has already become visible. Technological solutions developed by non-lawyers to tackle legal problems are gaining ground and thus challenge the lawyers’ professional hegemony on deciding how dispute resolution should be organised.

Questions on the implications of technology tend to voice both our hopes and fears. Will computer judges driven by artificial intelligence soon replace human intuition? Is human error removed from the equation? Are we finally reaching an era of true access to justice or are we endangering the stability of society? By emphasising digital technologies, are we about to face the gruesome triviality of case management software, reading too much into these aspirations that should be regarded simply as instruction manuals? Or are we talking about a fundamental change? At the core of all these questions two constants remain: what is law and how does technological innovation influence it?

Some questions can be, and have already been, answered. However, much remains to be seen, and there is still a lack of comprehensive analysis of the intersections between dispute resolution and digital technologies. The role of scientific examination is first and foremost to formulate necessary questions rather than simply providing answers to pre-set questions that reflect the threat and promise of technology. Against this nuanced background, this book evaluates how digital technology disrupts and changes one fundamental aspect of law, namely the enforcement of decisions rendered in dispute resolution. The objective here is to formulate a theoretical framework for evaluating the implications that digital technologies have for the legal system and then to apply this to dispute resolution.

The study consists of two main parts. In the first part I focus on the privatisation of dispute resolution through digital technologies. I demonstrate how the use of ICT creates new possibilities for privatisation of enforcement and how this development, in turn, affects the underlying methods of justifying dispute resolution in the first place. Through an analysis influenced by social systems theory I describe how the interactions of law, technology and society contribute to societal change of digitalisation and how the legitimacy of dispute resolution is created, renewed, reinterpreted and harnessed within the legal system. This analysis describes how digital technologies are giving rise to unforeseen privatisation, leading to a justificatory crisis examined in the second part of the study through three justificatory narratives of sovereignty, consent, and access to justice.

Understanding the delicate interplay between law, technology and society is the critical first step towards assessing the impact of technology on dispute resolution. This interplay is embedded in legal structures formulated over time and through these it defines the environment for future technological innovation. Thus, one cannot understand the future of dispute resolution technology without simultaneously looking into the past.

1.2 Interfaces of dispute resolution and digital technologies

In this section I briefly describe different areas where dispute resolution and technology overlap. Technological innovation for dispute resolution is often discussed either from the perspective of the courts or from the perspective of private dispute resolution providers. In the public sphere courtroom technology has been developed to improve existing practices, whereas in the private sphere of e-commerce use of digital technologies has enabled automated, scalable processes often called online dispute resolution (ODR). This two-pronged development and its implications for enforcement, which is the overarching theme of this book, brings the relationship between public and private dispute resolution to the fore. In addition to these, we can distinguish other interfaces between dispute resolution and technology, which do not easily fall into either of these categories, such as technology-specific procedural rules as well as the buzz-words ‘legal technology’.

It should be noted that these categories often overlap and should not be understood as exclusive. In this study, the term ‘dispute resolution technology’ is used when referring to all technology applications related in some way to conflict management, regardless of the public or private nature of the resolution model.

Courtroom technology

Courtroom technology refers to different applications of technology used in courts and the digitalisation of these existing practices, which often includes civil justice reforms. These applications include videoconferencing technology, case management systems, service of documents by email, access to legal information by electronic means, automated document generation, and e-archiving, to name but a few. Most of these applications of dispute resolution technology depend on legislative approval before implementation. These technological applications preserve their close connection with the nation-state, as they are publicly funded and incorporated into the court system.³ The role of technology is mainly auxiliary, as it is used to facilitate the adjudicative procedure, although exceptions do exist.

From the legislators’ perspective, technology might provide a variety of effective measures to combat the shortcomings of national court systems, such as inefficiency, time and costs. Implementing digital technologies might seem especially tempting as one-time investments and relatively low maintenance costs may permanently reduce labour costs.

Issues related to technology-enhanced trials are extensively regulated by and conform to national procedural rules. As it is, the public court system looks towards procedural jurisprudence to tackle technology-related issues of interpretation, and jurisprudence may deliver some insight by applying the methodology of legal dogmatics. Many of these interpretative problems can be answered by ex analogia interpretation of the existing provisions. For example, privacy of email correspondence could be compared with traditional letters by way of analogy. Another example of analogy is comparing presence via videoconference to actual presence in the courtroom.

Also, the intersection of courtroom technology is often designed to serve the needs of national courts and the legal system of a specific country. Thus, the applications of courtroom technology are not necessarily targeted to the needs of cross-border disputes. However, some cross-border instruments do exist. For example, the EU’s Evidence Regulation encourages the use of videoconference when evidence is obtained from another Member State.⁴

Online dispute resolution

Private conflict management augmented by technology is often called online dispute resolution (ODR), although the term is slowly falling out of fashion and many developers nowadays refer to their applications as legal technology. In any case, ODR can be seen as a pioneer of dispute resolution technology, having its roots in web applications as early as the 1990s.⁵

Originally ODR was developed as a mechanism for providing some form of redress for online disputes that would otherwise be left outside the courts owing to the low value of the claim or the jurisdictional challenges of cross-border litigation. Typically used in cases concerning e-commerce or other low intensity disputes,⁶ ODR processes are often partly or completely automated. Although there is no uniform definition, ODR is seen as private dispute resolution based on the consent of the parties, similarly to alternative dispute resolution (ADR).⁷ Because of this close relation to ADR and its criticism of the existing courtroom practices, ODR is often examined as part of ADR doctrine. ODR can be provided by several different intermediaries, such as e-commerce platforms, private ODR providers, credit card companies, or private actors performing public functions, as is the case with ICANN.⁸

It follows from ODR’s nature as private dispute resolution that its development has not been burdened by slow legislative, unlike innovations of courtroom technology; neither is ODR bound by due process criteria like the courts, which raises questions about the quality of such services. The role of digital technologies in ODR is often more pronounced than in courtroom technology, especially in completely automated procedures.

However, regulatory efforts are slowly coming to grips with ODR, in a bid to assure due process. In the EU, the ODR Regulation and ADR Directive established a union-wide ODR platform through which individual disputes are directed to the applicable national ADR entities.⁹ The EU’s framework is focused on non-binding ODR.¹⁰ Also, the United Nations Commission on International Trade Law (UNCITRAL) has attempted to draft uniform procedural rules for both binding and non-binding ODR. However, the work was terminated in 2016 having produced technical notes on ODR.¹¹

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Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• PART I: Theoretical implications of dispute resolution technology
• PART II: Three quests for justification: sovereignty, contract and access to justice
• PART III: New ways forward?
• Bibliography
• Index