Smart Contracts, ODR and the New Landscape of the Dispute Resolution Market

Abstract

Like any complex phenomenon, dispute resolution can be observed through different lenses. We can look at it from a public law perspective, scrutinizing the nature and the limits of the power that adjudicators exert, be them State judges, or private arbitrators. Conversely, we can analyze it from the vantage of private law, focusing on the role of private autonomy, the importance of party impulse, and the relationship between procedural remedies and individual substantive rights. Taking one step back, however, it is also possible to observe the dispute resolution landscape in its entirety, as a market where different actors offer competing services, according to the pattern of monopolistic competition. Looking at dispute resolution from this point of view, State court litigation and commercial arbitration are two of the many options that users are presented with, and invited to choose from; dispute resolution, in fact, is an ever-growing market, as the recent proliferation of international commercial courts demonstrates. In this type of market, competing “products” undergo a process of progressive differentiation, aimed at enhancing their attractiveness in the eyes of the users. Technology can be an important differentiating factor, maximizing the efficiency of a given dispute resolution service and, as a consequence, highlighting its desirability, as opposed to the available alternatives. In light of this, it is particularly interesting to investigate the potential impact of new technologies (and, in particular, of blockchain technologies) on dispute resolution, while observing the latter as a market. The aim of this short contribution, hence, is to highlight the different ways in which technology may alter (or disrupt) the dispute resolution market, with a particular focus on Online Dispute Resolution (ODR).