Search result: 62 articles

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Year 2018 x

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

    In this paper I propose to analyse the binary notion of personal data and highlight its limits, in order to propose a different conception of personal data. From a risk regulation perspective, the binary notion of personal data is not particularly fit for purpose, considering that data collection and information flows are tremendously big and complex. As a result, the use of a binary system to determine the applicability of EU data protection law may be a simplistic approach. In an effort of bringing physics and law together, certain principles elaborated within the quantum theory are surprisingly applicable to data protection law, and can be used as guidance to shed light on many of today’s data complexities. Lastly, I will discuss the implications and the effects that certain processing operations may have on the possibility of qualifying certain data as personal. In other terms, how the chances to identify certain data as personal is dependent upon the processing operations that a data controller might put in place.


Alessandro El Khoury
Alessandro El Khoury, LLM, Legal and Policy Officer, DG Health & Food Safety, European Commission.
Article

Access_open Fostering Worker Cooperatives with Blockchain Technology: Lessons from the Colony Project

Journal Erasmus Law Review, Issue 3 2018
Keywords blockchain, collaborative economy, cooperative governance, decentralised governance, worker cooperatives
Authors Morshed Mannan
AbstractAuthor's information

    In recent years, there has been growing policy support for expanding worker ownership of businesses in the European Union. Debates on stimulating worker ownership are a regular feature of discussions on the collaborative economy and the future of work, given anxieties regarding the reconfiguration of the nature of work and the decline of standardised employment contracts. Yet, worker ownership, in the form of labour-managed firms such as worker cooperatives, remains marginal. This article explains the appeal of worker cooperatives and examines the reasons why they continue to be relatively scarce. Taking its cue from Henry Hansmann’s hypothesis that organisational innovations can make worker ownership of firms viable in previously untenable circumstances, this article explores how organisational innovations, such as those embodied in the capital and governance structure of Decentralised (Autonomous) Organisations (D(A)Os), can potentially facilitate the growth of LMFs. It does so by undertaking a case study of a blockchain project, Colony, which seeks to create decentralised, self-organising companies where decision-making power derives from high-quality work. For worker cooperatives, seeking to connect globally dispersed workers through an online workplace, Colony’s proposed capital and governance structure, based on technological and game theoretic insight may offer useful lessons. Drawing from this pre-figurative structure, self-imposed institutional rules may be deployed by worker cooperatives in their by-laws to avoid some of the main pitfalls associated with labour management and thereby, potentially, vitalise the formation of the cooperative form.


Morshed Mannan
Morshed Mannan, LLM (Adv.), PhD Candidate, Company Law Department, Institute of Private Law, Universiteit Leiden.
Article

Access_open Privatising Law Enforcement in Social Networks: A Comparative Model Analysis

Journal Erasmus Law Review, Issue 3 2018
Keywords user generated content, public and private responsibilities, intermediary liability, hate speech and fake news, protection of fundamental rights
Authors Katharina Kaesling
AbstractAuthor's information

    These days, it appears to be common ground that what is illegal and punishable offline must also be treated as such in online formats. However, the enforcement of laws in the field of hate speech and fake news in social networks faces a number of challenges. Public policy makers increasingly rely on the regu-lation of user generated online content through private entities, i.e. through social networks as intermediaries. With this privat-ization of law enforcement, state actors hand the delicate bal-ancing of (fundamental) rights concerned off to private entities. Different strategies complementing traditional law enforcement mechanisms in Europe will be juxtaposed and analysed with particular regard to their respective incentive structures and consequential dangers for the exercise of fundamental rights. Propositions for a recommendable model honouring both pri-vate and public responsibilities will be presented.


Katharina Kaesling
Katharina Kaesling, LL.M. Eur., is research coordinator at the Center for Advanced Study ‘Law as Culture’, University of Bonn.
Part I Courts and ODR

Access to Justice and Innovative Court Solutions for Litigants-in-Person

The Singapore Experience

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords access to justice, innovative court solutions, ODR, e-Negotiation, tribunal
Authors Ow Yong Tuck Leong
AbstractAuthor's information

    This article highlights the Singapore judiciary’s experience in introducing an online filing and case management system with Online Dispute Resolution (ODR) for small value disputes to improve access to justice. This system, called the Community Justice & Tribunals System (CJTS), is a fully integrated justice solution, allowing parties to settle their disputes and obtain a court order online. The article sets out the issues and challenges encountered in developing CJTS, the innovative solutions implemented and CJTS’ positive impact on litigants-in-person.


Ow Yong Tuck Leong
District Judge Ow Yong Tuck Leong is a judicial officer in the Community Justice and Tribunals Division of the State Courts of Singapore. He is the Executive Sponsor of the CJTS. Prior to joining the State Courts, Ow Yong had served in different positions as a Senior Assistant Registrar, Registry of Companies and Businesses; State Counsel, Attorney-General’s Chambers; and Deputy Director (Legal, Enforcement & International Affairs) of the Competition Commission of Singapore.
Part II Private Justice

How Online Negotiation Support Systems Empower People to Engage in Mediation

The Provision of Important Trade-off Advice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR programs, empowerment, online negotiation support systems, technology
Authors Emilia Bellucci and John Zeleznikow
AbstractAuthor's information

    Face-to-face negotiation is the preferred communication style for negotiation, as it is the richest form of communication (Daft & Lengel, 1986), allowing for words, gestures and body language to be clearly communicated. This form of communication also allows for instant feedback, essential in negotiation when it is imperative to check understanding of each other’s views and priorities. Bodtker and Jameson (2001) argue that experiencing emotion is one way we recognize conflict. Invariably, dispute resolution involves emotion, which if allowed to flood the substantive issues, otherwise known as emotional flooding, may result in disputants incapable of acting rationally (Jones & Bodtker, 2001), which may lead to unfair solutions. For example, in high-stress negotiations of family disputes, it may be difficult to think rationally about both the disputants and children’s future needs. This may lead to people having to live with a less-than-ideal financial situation that is not representative of their future needs. Online dispute resolution (ODR) systems involve the use of technology to aid (or in some instances to replace) human communication in the dispute resolution process. This means replacing a very rich form of communication with a lower form of media, with the lowest being text-based forms of communication. ODR using video-conferencing technology benefits disputants located in different areas, hence providing a good medium for those who geographically cannot meet in person. While also a fairly rich mode of communication, this type of technology is heavily dependent on infrastructure variables, such as Internet speed, application support and connectivity issues, which are not always available. In this article, we will introduce the concept of how ODR can support face-to-face negotiations by re-introducing our software AssetDivider as a method to support the face-to-face process in negotiation.


Emilia Bellucci
Emilia Bellucci is senior lecturere in the Department of Information Systems and Business Analytics, Deakin University, Deakin Business School, Geelong, Australia.

John Zeleznikow
John Zeleznikow is a professor in College of Business, Victoria University, Melbourne, Australia.
Part I Courts and ODR

Testing the Promise of Access to Justice through Online Courts

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online courts, empirical research, civil justice, access to justice
Authors Bridgette Toy-Cronin, Bridget Irvine, David M. Nichols e.a.
AbstractAuthor's information

    Modernization is increasingly knocking on the courthouse door. Many common law countries are investigating ways to introduce technology to improve civil courts, including the introduction of online courts. These state-led initiatives are primarily focused on lowering state costs in providing justice, as well as increasing access to dispute resolution. One possible solution some legal jurisdictions are exploring is ‘online courts’. Online courts hold the promise of making justice more accessible and affordable: a dispute can be filed at any time, from anywhere, by anyone. This model of delivering justice is envisioned as a system that either is lawyer-less or has a minimal role for lawyers. One of the assumptions underpinning an online court is, therefore, that laypeople can effectively explain a dispute to the court, without legal assistance. To date, there is no empirical research investigating that assumption. In this article, we will outline the proposed online court model, consider the need for robust empirical research, and describe a three-part investigation to explore how clearly and accurately people can explain a dispute.


Bridgette Toy-Cronin
Bridgette Toy-Cronin is the Director of the University of Otago Legal Issues Centre and a Senior Lecturer in the Faculty of Law, University of Otago.

Bridget Irvine
Bridget Irvine is a Postdoctoral Fellow at the University of Otago Legal Issues Centre.

David M. Nichols
David M. Nichols is an Associate Professor in Computer Science at the University of Waikato.

Sally Jo Cunningham
Sally Jo Cunningham is an Associate Professor in Computer Science at the University of Waikato.

Tatiana Tkacukova
Tatiana Tkacukova is a Senior Lecturer in the School of English, Birmingham City University. Authors appear in order of the contribution made to the paper.
Part II Private Justice

ADR-Rooted ODR Design in Europe

A Bet for the Future

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, dispute system design, European law, redesign of ADR systems, artificial intelligence
Authors Fernando Esteban de la Rosa
AbstractAuthor's information

    The new European regulatory framework has a greater significance than it expressly declares, both for the development of online dispute resolution (ODR) in Europe and for the structure of alternative dispute resolution (ADR) entities of the Member States. A close reading of the ADR Directive reveals an implicit but clear mandate for the development and intensive use of ODR tools by certified ADR entities that could lead to the creation of new ODR platforms. The new ADR/ODR regulatory framework shows a clear tendency to produce important transformations in the traditional ADR structure in every Member State. This article aims to identify criteria for the development of ODR in Europe and to discover the European law’s implicit mandates related to the redesign of the ADR structure in the Member States, while assessing the role of the Member States, the ADR entities and the European Union itself.


Fernando Esteban de la Rosa
Fernando Esteban de la Rosa is Chair in Private International Law, University of Granada, Spain; NCTDR fellow.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Part II Private Justice

Decentralized Justice in the Era of Blockchain

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, blockchain, arbitration, decentralization, crowdsourcing
Authors James Metzger
AbstractAuthor's information

    ODR that is built on blockchain technology and infrastructure is championed by supporters as being capable of revolutionizing dispute resolution. Kleros is a decentralized dispute resolution platform built on the Ethereum blockchain that uses cryptoeconomic theories and game theory to recruit and incentivize a worldwide pool of ‘jurors’ to decide the cases arbitrated through the platform. This article discusses some early evaluations of whether this kind of decentralized ODR is likely to succeed by viewing the model through a normative framework, including considering whether crowdsourcing of justice on a decentralized platform is a viable way to conduct ODR. The article then discusses the likelihood of the success of the sub-court model, including whether choice-of-law issues might be problematic for a worldwide, decentralized system. Finally, the article considers whether the cryptoeconomic and game theories that provide the foundation for the Kleros platform are likely to result in a jury pool, much less an actual jury, that could be considered ‘fair.’ The article is informed by the author’s experience with the Kleros platform through participation in its interactive initial coin offering and engaging in its beta-testing phase.


James Metzger
Dr. James Metzger is a lecturer at the University of New South Wales Faculty of Law.
Part I Courts and ODR

Ethical Concerns in Court-Connected Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court ODR, fourth party, ethics, access to justice, confidentiality, transparency, informed participation, accessibility, accountability, empowerment, trust
Authors Dorcas Quek Anderson
AbstractAuthor's information

    This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in private ODR, because of the association of the courts with substantive and procedural justice. As in any dispute resolution system, a coherent and effective court ODR system should be guided by dispute system design principles, which includes having clarity of the system’s underlying values and purposes. It is therefore pertinent for each court to resolve the key ethical tensions in order to articulate the foundational values that will undergird the design of its ODR system.


Dorcas Quek Anderson
Dorcas Quek Anderson is an Assistant Professor in the Singapore Management University School of Law. This research is supported by the National Research Foundation, Prime Minister’s Office, Singapore (NRF), and the Infocomm Media Development Authority (IMDA) under a grant to the Singapore Management University School of Law to helm a 5-year Research Program on the Governance of Artificial Intelligence and Data Use.
Part II Private Justice

Making ODR Human

Using Human-Centred Design for ODR Product Development

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online dispute resolution, courts and tribunals, human-centred design, legal tech, legal design, user testing, user-centred design, machine learning, alternative dispute resolution, product development
Authors Luke Thomas, Sarah Kaur and Simon Goodrich
AbstractAuthor's information

    This article discusses what we as human-centred design practitioners have learnt from researching and designing online dispute resolution (ODR) products both for clients and as part of our internal research and development initiatives.


Luke Thomas
Luke Thomas is Design Strategist/Legal Researcher at Portable.

Sarah Kaur
Sarah Kaur is Chief Operating Officer at Portable.

Simon Goodrich
Simon Goodrich is Managing Director at Portable.
Article

The Rome Statute Complementarity Principle and the Creation of the African Court of Justice and Human and Peoples’ Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Rome Statute, International Criminal Court, complementarity, African Court of Justice and Human and Peoples’ Rights, unwillingness and inability
Authors Muyiwa Adigun LLB, LLM PhD
AbstractAuthor's information

    The Rome Statute places the responsibility of prosecuting crimes recognized under the Statute on state parties and the International Criminal Court (ICC) and will only intervene when such states are unwilling or unable. This is called the principle of complementarity. Thus, African state parties to the Statute are expected to prosecute crimes recognized under the Statute. However, these African state parties and their counterparts who are not parties have decided to create the African Court of Justice and Human and Peoples’ Rights, which, like the ICC, will prosecute the crimes recognized under the Rome Statute if they are unwilling and unable. This study therefore examines the question of whether the creation of the African Court of Justice and Human and Peoples’ Rights is compatible with the obligation of the African state parties under the Rome Statute to prosecute. The study argues that the creation of the Court can be reconciled with the obligation to prosecute under the Rome Statute if the African Union, of which the Court is its judicial organ, is considered to be the agent of the African state parties, which invariably implies that the African state parties are the ones carrying out the prosecution as principals.


Muyiwa Adigun LLB, LLM PhD
LLB, LLM (Ibadan); PhD (Witwatersrand); Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria.

Marcell Horváth
PhD candidate, University of Pécs.

Írisz E. Horváth
Associate professor, Pázmány Péter Catholic University, Budapest.

Ágota Török
Legal counsel, accredited public procurement consultant, National Infocommunications Service Company Ltd.

Albert Dzur
Albert Dzur is Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Keeping complexity alive: restorative and responsive approaches to culture change

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, responsive regulation, relational governance, complexity
Authors Gale Burford
AbstractAuthor's information

    The human services are fraught with history of failure related to grasping oversimplified, across-the-board solutions that are expected to work in all situations for all groups of people. This article reviews some of the long-standing and current challenges for governance of programmes in maintaining cultures that safeguard restorative and responsive standards, principles and values, thereby amplifying and enhancing their centrality to relational engagement within families, groups, communities and organisations. Despite their potential for helping groups of people grapple with the complex dynamics that impact their lives, restorative justice approaches are seen as no less vulnerable to being whittled down to technical routines through practitioner and sponsor colonisation than other practices. This article explores some of the ways culture can work to erode and support the achievement of restorative standards, and why restorative justice and regulation that is responsive to the ongoing experiences of affected persons offers unique paths forward for achieving justice. Included in this exploration are the ways that moral panic and top-down, command-and-control management narrow relational approaches to tackling complex problems and protect interests that reproduce social and economic inequality.


Gale Burford
Gale Burford is Emeritus Professor of Social Work, University of Vermont, Burlington, USA. Contact author: gburford@uvm.edu. Disclosure statement: There are no financial conflicts of interest.
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