Online Dispute Resolution: Justice Without the State?

No. 2014-02

This paper examines the evolution of norms through private ordering in the commercial Internet environment. It has been argued that this environment is fertile ground for the evolution of transnational legal regimes which are largely independent of state input and control. The paper first tests the validity of this assertion by exploring the rules governing transactions and dispute resolution mechanisms on “eBay,” the single most important online trading platform. In a second step, the paper addresses a peculiar public-private arrangement between the Internet Corporation for Assigned Name and Numbers (ICANN) and the United States Government. The paper concludes that the latter has produced a transnational online dispute-resolution forum governed largely by non-state normative forces. The paper further concludes, however, that this normative order represents an exception. Contrary to common expectations, commercial online activities have not produced a body of transnational non-state jurisdictional cyberlaw. The oft-cited example, and most plausible candidate for such a development, the online trading platform eBay neither represents an autonomous legal order, nor is its core of operations transnational.