tl;dr – This is the English version of an article about how we resolve disputes and what borders – geographical or otherwise – we cross in doing so. The German version can be found here. [Dies ist die englische Fassung eines Artikels zum Thema Streitbeilegung und den – nicht allein räumlichen – Grenzen, die wir dabei überschreiten. Die deutsche Fassung findet sich hier.]
This article is based on a speech I was asked to give to MBA students of the Management Development Institute of Singapore in July 2016. I spoke without notes but, as it turned out when I got back home, with a fever. Perhaps that wasn’t helpful. Anyway, here’s what my speech sounded like in my head. Kind of.
Crossing borders in dispute resolution. A talk like this, by a lawyer, will evoke the usual associations: must be about international arbitration and international courts of law. Well, yes, to some extent. But apart from that, shall we attempt to cross a few borders, I mean, really? Including some so far away that they might seem imaginary?
Perhaps there is no need to go into detail, at least not at the beginning, about what a dispute, or a disagreement, or an argument is. At least for now, may dispute be to us what pornography was to US Supreme Court Justice Potter Stewart: we know it when we see it.
Parties to a Dispute and Ways to Resolve It
One can be in a dispute with oneself (we could refer to this as ‘having issues’), or with another person or other persons (I shall simplify from now on by using either singular or plural at times, even where both of them may be applicable).
How to resolve a dispute? A dispute can be resolved either by the disputing parties alone, or by the disputing parties and a third party jointly, or by a third party alone.
One Party: Resolving Issues
This means that if someone has issues, he can try to resolve them on his own, perhaps by reflecting on them or by meditating. Or he can try to resolve them by asking someone else for help, like a parent, friend, teacher, colleague, priest or psychologist. It is conceivable that this someone else goes over the head of the one having the issues, although this would raise autonomy and dignity concerns. If so, this might be a border that should not be crossed.
Among Disputing Parties: Giving in, Imposing or Settling
If a person is in a dispute with someone else, resolving the dispute can consist of one of the parties simply giving in. Motives aside – when this happens, the dispute is over. Another way of resolving a dispute with someone else is when one party imposes his will on the other. Admittedly, this may not foster the relationship between the parties, but the particular dispute of the day is resolved. And then there is yet another way of resolving a dispute between parties without involving a third party, namely when the parties come to terms and settle, usually by way of compromise.
Impartial Third Party
All of the above can be achieved with the help of a third party which sides with one of the disputing parties. A third party which takes sides marches alongside of one party, either openly like an allied army, or not-so openly like a bribed judge. In the narrower sense, he is no third party but an additional team member of one of the disputants. The third party I am talking about is a separate one. Separate implies impartial. Neither is this third party a disputant in his own right. For want of anything else, his role is that of a dispute resolver. To which extent may vary.
Impartial Third Party Resolving on its Own
A third party understood this way can resolve a dispute without heeding what the disputing parties think or want. In this event, this seems to imply a certain lack of autonomy of the disputing parties on the one hand, and certain powers of self-assertion of the resolver on the other. It seems to imply that the resolving third party not only enforces the applicable rules, but is also the one who makes them. A parent confiscating a toy which the children fight about comes to mind. Like it or not – dispute resolved.
Disputing Parties and Third Party Jointly: Resolution by Mediation
Parties which are fully accountable, however, are not necessarily subject to rules set by someone else when it comes to their private affairs. This includes dealing with disputes. Thus, fully accountable parties may choose, for example, that their dispute be resolved with the help of an impartial third party in such a way that the third party merely facilitates settlement. This is known as mediation and the third party a mediator. Ultimately, the rules which the mediation is to follow are set by the disputing parties. They may delegate this determination to the mediator or to someone else, but even this would trace back to the parties. Such rules may comprise a lot of things: the law, trade practices, social norms, or simply the mediator’s own perception of what is fair. In any case, mediation is when the parties talk it out, with the help and under the guidance of the mediator. If the parties reach a settlement this way and abide by it thereafter, then the dispute is resolved.
Disputing Parties and Third Party Jointly: Resolution by Arbitral Award
A third party may also decide a dispute instead of the parties, in a manner which is binding on the parties. This works to the extent that the parties ‘own’ their dispute and thus may choose not only whether, but also how they want their dispute to be resolved. The parties ‘own’ their dispute to the extent that it affects them alone and no one else including the public, which is not always obvious. But if a dispute is private indeed and the parties decide to have their dispute resolved bindingly by a decision maker of their own choosing, then this is arbitration and such a decision maker an arbitrator. As with mediation, the rules according to which the dispute shall be resolved are set by the disputing parties, either directly or indirectly, for example by reference to the rules of an arbitral institution. And likewise these rules may comprise the law, trade practices, social norms, the arbitrator’s perception of what is fair or a wild mix of all that. If the arbitrator finds a decision this way and all parties abide by it thereafter, then the dispute is resolved. If one of the parties does not agree with the decision or abide by it, it is still bound by it. Because previously it had agreed that it would be.
Disputing Parties and Third Party Jointly: Resolution by Judgment
Decision-making by a non-party and a decision which is binding on the parties – sounds a lot like judge and court? Quite similar indeed, but the differences are crucial. For one, usually a judge has the power, even the duty, not only to consider the interests of the parties, but also the interests of the non-involved, namely the public, whether the disputing parties like it or not. This is judicial dispute resolution, or litigation. Here, the parties do not ‘own’ the dispute in full anymore. The rules applicable – at least in eponymous rule-of-law systems – are determined by law. Trade practices, social norms and perceptions of equity may play a part, but only to the extent provided for by law. If the judge finds a decision this way and all parties abide by it thereafter, the dispute is resolved. If one of the parties does not abide by the decision, it is still binding on it. Not necessarily because previously the parties had agreed to be bound by it, but because the overriding rules – the law, mostly – decree it.
There is another principal difference between judicial dispute resolution and any other kind of dispute resolution. It has to do with: enforcement.
Enforcement by States: the Executive
The result of successful mediation is an agreement to settle. Between open-minded parties it may be easier to settle than having the dispute resolved by an arbitrator or a judge. Certainly this is because parties which enter mediation together are still on speaking terms. But this is also because the parties and their mediator are free to focus on their needs and wants, without having to deal so much with procedural issues. Mediation is flexible; the mediator can, and should, feel it out. On the downside, this means that even successful mediation yields nothing more than an agreement which a party may choose not to honour in the aftermath. If this happens, the parties are more or less back to square one, the difference being that now they are in dispute over one of them breaching the settlement agreement.
The result of successful arbitration is an arbitral award, which is binding on the parties because they had agreed that it would be, regardless what they think of it now. It may be more difficult to obtain an award because the parties and their arbitrator are not as free to deal with the substance of the dispute alone. They also have to consider how the dispute shall be solved. This is why, as an unfortunate side effect, parties often extend their dispute to procedural matters. In and of itself, if a party chooses not to honour the award, this constitutes nothing more than a breach of the agreement to arbitrate. Without further ado, the parties would be back to square one as if they had entered into a settlement agreement which is breached by one of them.
Luckily, it is not so pointless. A settlement (mediated or not) which is breached or an arbitral award which is not honoured, in fact any agreement which is breached, can be asserted. We meet again one of the ways to resolve a dispute – by imposing ones will on the other – , only this time as a way to assert that which has been agreed upon. Indeed one could think of anything under the sun and pretty much all of that has been pursued in the course of human civilisation, from persuasion to violence and everything in between. If persuasion works – fine. But what if one needs to get tough with a party in breach? Then there may be the need to enforce that which is binding. This is not to proclaim the law of the jungle, because today the legitimate use of force is usually monopolised by the state. And the state has a department for that: the executive.
The executive is the sister of the judiciary, two of the three siblings which constitute state power. This is why judicial dispute resolution is not only binding on the parties, at least within the jurisdiction of the court, it is also relatively easy to enforce it against the parties (even against non-involved third parties as the case may be), at least within the reach of competence of the executive. Where the legitimate use of force is monopolised by the state, the state wants to determine what legitimate dispute resolution is. Not a problem, usually, where a dispute is resolved by the state itself. In this case, the executive takes a brief look at whether it is a judiciary decision indeed and if so, one is good to go. Mediated settlements or arbitral awards on the other hand are obtained without the state; they do not run in the family, so to speak. To enforce them, one must obtain the state’s more detailed approval. In deciding whether to grant that, a state would make no difference between them or and any other agreement which one party seeks to enforce against another. All this means that to enforce, one needs a court judgment in any case. An exception usually applies, though, for arbitral awards.
An arbitral award is a decision by an arbitrator. The parties may not be happy with it at all. But they have agreed in the arbitration agreement that the award, whatever it looks like, would be binding on them. Many, if not most states respect the arbitral work done – it does reduce the workload of their judiciary after all – and apply a reduced standard of review to arbitral awards in their enforcement proceedings. They do not address the dispute and its resolution as such. They just check whether the award really only affects the parties because they fully ‘own’ the dispute, or whether there are any overriding principles or interests of non-involved third parties that speak against the enforcement of a decision by a non-member of the judiciary.
Enforcement beyond States: Judicial Cooperation and Mutual Legal Assistance
It lies in the nature of the three state powers – the rule-making legislative, the rule-interpreting judiciary and the rule-enforcing executive – that they are confined to their state. And ‘state’… well, there are many definitions of state as a polity, but all of them have one thing in common: they require state territory. This is why usually the enforcement of a judicial decision is not a problem within the territory of one and the same state. But enforcement of any dispute-resolving decision reaches its limits when it has to cross state borders. In the era of globalisation, this happens really often.
To some extent states try to solve this by resorting to supranational and intergovernmental organisations and policies. They allow other state powers, or the powers of a third entity, in part to operate on their territory: renunciation of sovereignty. True samples hereof are the European Court of Justice, the former EU policy of Police and Judicial Cooperation in Criminal Matters, or mutual legal assistance (as far as the executive is concerned) and judicial cooperation (relating to the judiciary) among the members of the United Nations, Interpol, or the Commonwealth of Nations.
Sometimes this works quite well. Renunciation of sovereignty and intergovernmental cooperation may evolve into something relatively well-aligned, for example at EU level where, arguably, the degree of enforcement of decisions of the EU judiciary by the executive powers of the EU member states is unprecedented in history. The same applies, with some reservations, to the enforcement of decisions of the court of any EU member state by any other EU member state.
In the context of dispute resolution, there is an even better example: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. By this New York Convention, all relevant states in the world have committed to do that which its name implies: to recognise and enforce foreign arbitral awards – subject, just as a domestic award would be, to the ‘usual’ checks whether there are any overriding principles or third-party interests that speak against the enforcement of a decision by a non-member of the judiciary. Or, similar to the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, which contains provisions on the recognition and enforcement of awards in the field of international commerce. Just that it is not binding and fewer states have enacted it into domestic law.
Dispute Resolution and Enforcement in Cyberspace
State borders are the borders everybody thinks of immediately when ‘crossing borders’ comes up. Understandable – we are all spatial beings. And we are spatial beings because we are physical beings. Most of us, however, are more than hardware, most of us are also software. But for so long as we occupy our physical bodies, these bodies have to be somewhere in physical space. The physical space available to us at this point in time is our planet Earth.
And because we are many on this planet, we live in societies, and due to certain benefits that come of it many of those societies are constituted as states, and most states existing today refer to themselves as rule-of-law systems. So far as the laws of these states concern the relations among equal subjects, they are called private law. To the extent that the laws concern the relations between individuals and the state (be it within or across physical state borders), they are called public law. Thus, law on the enforcement of a dispute resolution – executed against individuals by state authority – is public law too.
But only a short while ago, from an evolutionary point of view, we have created and started to inhabit a space incorporeal where, as matters stand, there is no public law including law on the enforcement of dispute resolutions. Nevertheless, parties have disputes there, which are resolved, and these dispute resolutions do get enforced: cyberspace.
Physical space is, well, physical, whereas cyberspace is not. We have started to inhabit cyberspace with the software part of what makes us up, but we have not stopped inhabiting physical space with our physical bodies. We just do both. There is a fairly distinct border between these two spaces, yet many of us do not realise it well, perhaps because it runs right through us and we cross it constantly. As a consequence, we tend to obliterate the differences between both spaces. States in the physical world have always been seeking to regulate behaviour in cyberspace alright, but come to think of it what they have really been doing is regulate behaviour in their territory, by way of law, for example on data protection or intellectual property. It is an indirect approach at best. Enacting laws and enforcing them in the physical world may not be difficult. Enforcing them in cyberspace alone is. There is no direct regulation by law by states in cyberspace, no public cyber enforcement law, simply because there are no cyber states.
How are disputes among parties resolved in cyberspace and dispute resolutions enforced there? I mean, really only there, not indirectly by way of taking a detour via physical space?
The Law of the Strongest
At the beginning we have seen that a dispute among two parties or more can be resolved in one of the following ways.
Firstly, one side either wins through, or it gives in. Secondly, the mum shows up and takes away the toy in dispute. None of this requires further enforcement.
Thirdly, the parties find a settlement on their own, or the dispute is resolved jointly with an impartial third party – the latter being a mediator, an arbitrator or a judge. These ways of resolving a dispute may have to be enforced and thus rely on an enforcing authority.
Indeed it would seem that disputing parties, for want of official enforcing authority in cyberspace, are not incentivised to seek a means of dispute resolution which might have to be enforced. Instead, disputants seem to be incentivised either to impose their will on the other, if they are strong enough, or to give in, if they are too weak. At the same time, they might want to be on the lookout against a ‘cyber mum’ who may appear and resolve the dispute the way she deems it best.
What I have just described in the abstract is the behaviour displayed by relatively strong players in cyberspace on the one hand, like Amazon, Facebook, Google or just your mighty online forum moderator, and the rest of us on the other hand. The former tend to impose their will on others in a dispute. And should others quarrel ‘under their roof’, they can end this dispute either way. All the while, they do not have to heed rules that might be mandatory elsewhere, such as the rules of public law in physical space, because there is no state monopoly on the legitimate use of ‘force’ in cyberspace. The rest of us tend to bear the wrong and to give in.
To paraphrase, cyberspace is governed by the law of the strongest.
Example? The data protection commissioner of Hamburg, a federate state of the Federal Republic of Germany whose territory covers 0.00051 per cent of the land surface area on this planet, has ordered Facebook to stop collecting data on WhatsApp users in Germany, and to delete all information already forwarded from WhatsApp on roughly 35 million German users. In doing so he invoked powers vested in him by Federal German and Hamburg data protection law. He is now having a dispute with Facebook about Facebook’s behaviour in cyberspace, where he has no authority and where there is no official executive. Regardless of what he will try to do about it in physical space, it feels safe to say that Facebook will not do as it was told by the data protection commissioner of Hamburg. In cyberspace, Facebook will resolve the dispute by imposing its will on the data protection commissioner. Because it can.
According to latest news, the commissioner advises against using Whatsapp. Put another way, he advises against entering those regions in cyberspace which are dominated by Facebook. Sounds like he was giving in.
The lack of official power to help enforce dispute resolution in cyberspace does not mean that the prevalent ways of resolving disputes and enforcement in cyberspace are arbitrary. The law of the strongest is not applied by guess and by gosh. On the contrary, we might find that the parties concerned follow detailed rules on resolution and enforcing. Just that these rules are imposed by one party on the other.
Facebook and others have in place general terms and policies which set out in much detail what shall happen when, and if you want to enter, you must agree to all of them. Even though the application of these rules may seem opaque to outsiders – the insiders claim that they observe them with meticulous precision. It does not matter so much whether the rules are transparent or valid and enforceable in physical space, in the territory of some state. What matters more is that the formulation, interpretation and application of these rules in cyberspace lie with those, and only with those who impose them.
Rules like this are not public law; they are the epitome of private law in combination with imbalanced negotiating power. That private law can play such a dominant role is anything but new; it may just be a new experience for us in our lifetime. In history, private law as a regulator, often paired with imbalanced negotiating power, has always preceded public law. Because by definition, public law does not exist before there are states and states are always preceded by less consolidated, ‘private’ forms of society.
This is where we are today, with border-crossing dispute resolution. As far as physical space is concerned since the late 1940s, when the first international courts of modern make appeared; since the late 1950s, when the New York Convention came into force as the foundational instrument for international arbitration; and since some time later when mutual legal assistance between states became a thing. And since the 1990s when the masses entered cyberspace and brought not only commerce and R&R, but also disputes. What is the next border to cross in dispute resolution?
We have just crossed one.
As mentioned, we are part hardware living in the physical space that is objectively on hand, part software living in any lalaland that we think up, including cyberspace (at least we are capable to). This is us, humans; some call it Tinkerbell effect. In cyberspace, right behind the border which we have just crossed, we meet creatures that are not both hardware and software, but software through and through: algorithms.
Here is a correcting qualification right away: broadly speaking, if we put algorithms into machines, we get robots, which are not software through and through, but both hardware and software as well. Very interesting topic, too, because with robots something new has entered our traditional physical habitat. Whatever can be said about algorithms can often be said in similar fashion about robots. For the sake of clear-cut reasoning, though, I would like to keep to algorithms and their ‘natural’ habitat, cyberspace.
Dispute Resolution with Algorithms
The idea is convincing: dispute resolution using algorithms. I do not mean administrating dispute resolution using information technology – this is done since the dawn of IT –, but using algorithms to help resolve. For example by applying the concept of optimisation, known from systems engineering, to settlement negotiations and mediation, even arbitration and litigation. Or, in arbitration or litigation, by having algorithms trawl through the massive volumes of case law and documents that parties are wont to disclose these days (‘e-discovery’). By having algorithms structure the data and identify patterns, trends and lines of argument to predict the probability of case outcomes. In other words, by using algorithms to find the needle in haystacks of evidence that have grown into densities and heights that no human can cut through anymore.
(As a side note, this is one way of approaching it: finding ways to wield big amounts of evidential data better. Another method consists of avoiding such big amounts of evidential data in the first place, without compromising rightness and justice. But that pertains to the question what kind of, and how much, evidence is really necessary to resolve a dispute by arbitration or litigation; a somewhat related yet different subject.)
It would appear that, as of today, algorithms are not often used to optimise the results of dispute resolution, as a tool for resolvers. Rather, today algorithms seem to be used as dispute resolution tools by lawyers. Indeed a whole industry has emerged from it, which promises to do to the legal industry what FinTech is doing to the finance industry: LegalTech.
Some say LegalTech will lessen, perhaps even obviate the need for lawyers doing all these routine works which they have been doing for ages. In fact this has been in progress for some time now. Today, ubiquitous online legal databases give a single lawyer access to more data at a mouse click than any band of lawyers could have collected in the past. Noticeable, however, is the increasing pace of algorithms becoming smarter. At present, they are still wielded as tools by humans. But what would happen if we should cross that border, too? And protrude into an area where algorithms will no longer be savvy tools for lawyers preparing to appear before a human mediator, or judge, or arbitrator? But where algorithms are the dispute resolvers?
Dispute Resolution by Algorithms
All rise, all rise, this court is now in session! The honourable judge Al Gorithm presiding!
(SCNR. Many apologies.)
This is a border we have not yet reached, let alone crossed. We are not about to either. Whether or when we will cross it seems to be a threshold issue. Dispute resolution by algorithms will require of algorithms something which, as of today, they do not seem to master. Nowadays algorithms can help us find, sort and structure dispute-relevant data, and fast, and perhaps they can help us predict the probability of case outcomes too. Algorithms are tools. To become resolvers, algorithms must be capable of comprehending both the facts of a dispute and the rules applicable to it completely, and of applying one to the other. This sounds easier (I am not saying: easy) with a view to litigation and arbitration, at least where the rules applicable are those of the law. It sounds more difficult in view of mediation, where the rules applicable may not be defined so clearly and may comprise fuzzy things like ‘appropriate interests’ or ‘context’.
In short, algorithms must be much smarter than they are today. Will they ever be smart enough for this? A few rule this out categorically while others think it is possible. Yet others believe that in addition to a high degree of artificial intelligence, which might be feasible, it would require artificial consciousness, which was not contrivable.
Seeing how calculable many of us are, objectively (whether we like it or not) I am not so sure about the consciousness requirement. It may prick our pride, but on the whole our needs and wants as well as our manners are pretty predictable and describable. Let us assume, therefore, that an algorithm will not require consciousness to be a dispute resolver. Let us stay with the smartness of algorithms and assume that the border to the smart enough will be crossed someday. Who is going to take algorithms there? Why, their creators of course: coders.
Lawrence Lessig has coined the phrase that in cyberspace code is law. He was referring to code as the architecture of cyberspace and of its increased importance as a regulator, compared to the importance of law as a regulator in physical space. In the same vein he was talking about coders as the (sometimes short-sighted) lawmakers of cyberspace, but not as the creators of algorithms, our cohabitees in cyberspace. Nevertheless, algorithms are the brainchildren of coders. Thus, whether an algorithm will be capable of comprehending the facts of a dispute and the rules applicable to it, and of applying one to the other, depends at the outset on its maker.
We have seen that the rules applicable to the resolution of a dispute can be manifold. They can be the law (public or private), trade practices, social norms, the decision-maker’s own perception of fairness or a combination of some or all of these. We have also seen that it may be easier to convert simple law into code than the comprehensive and perhaps inarticulate interests of the parties. Likewise, a coder will be hard put to convert complex law into code, or social norms, or trade customs, or perceptions of fairness, at least if the expected result is an algorithm sophisticated enough to be called more than a tool, namely a true dispute resolver. To reach that level of sophistication, an algorithm might have to emancipate itself from its maker. In the first place, it has to be able to do that.
Enter self-learning or evolutionary algorithms. Simplifying, these are algorithms capable of finding solutions to a problem by themselves. Furthermore, they can apply, or learn to apply, a fitness function to establish how one solution works compared with another one.
A legal dispute between, say, two business partners can be a complex problem. As of today, no algorithm seems to be able to resolve it all on its own in a satisfactory manner. A self-learning algorithm approaching to do so would have to be able to understand completely this problem and the rules applicable, to come up with viable candidate solutions and to apply a fitness function to each of them. If an algorithm could do that, it would be more than smart. It would have the necessary intelligence to decide the dispute. Such an algorithm could be a mediator, arbitrator or judge; it could act as the impartial third party resolving the dispute.
As I said, not a border we have reached yet. But since there are self-learning algorithms, chances are that the day will come when such an algorithm will be intelligent enough to resolve a dispute. Just a guess, but this might happen in an area where both the dispute and the rules applicable to its resolution are relatively simple.
In this context, there is another threshold which should not be underestimated. Perhaps it is even higher than the smart-enough threshold. Dispute resolution by algorithms is not only about what algorithms need to be capable of. It is also about the parties’ readiness to accept dispute resolution by an artificial intelligence, without consciousness even. Just a guess again, but this threshold might prove to be lower in cyberspace than in ‘our’ physical space, and even lower where the substance of the dispute should be cyber, too.
Come to think of it, this acceptance issue would be avoided, probably, if the dispute was not one involving humans but one among algorithms.
Dispute Resolution for Algorithms
The final frontier of dispute resolution. We enter a realm where algorithms are not just tools to resolve disputes or even dispute resolvers themselves. There, algorithms are parties to disputes in their own right.
At the beginning, we saw no need to go into detail about what a dispute is. We said we know a dispute when we see one. But admit it, that was because we assumed a dispute was something among humans. Now that we talk about algorithms as parties to a dispute, we cannot ignore this part so nonchalantly. If we want to think about dispute resolution for algorithms, we need to ask: can algorithms be in a dispute in the first place? And if so, how do they do it?
Algorithms are a self-contained step-by-step sets of operations to be performed to provide a solution to a problem (some say: so are humans). If done right, there is input at the beginning and output at the end, and often more than one way of reaching the latter. If not done right, infinite loops may occur. That means a sequence of steps is repeated endlessly, either because there is no terminating condition, or one that cannot be met, or one that causes the loop to start over. The algorithm does not come to an end. Last time your computer froze – that was one of those loops.
It seems possible to say that an algorithm at such a primordial stage can have issues (if it loops), but perhaps it is not appropriate to assume that the algorithm would be able to help itself. To say that such an algorithm could be in a dispute with someone, or something, else and seek resolution of that would be too far-fetched.
But it may be different at a later stage of development, for an evolutionary algorithm, which can learn and come up with viable solutions to problems. It is conceivable that the solutions found by such an algorithm are in conflict with someone, or something, else. In such a case, could we not say that our evolutionary algorithm was having a dispute with him, or her, or it?
If we assume that an algorithm, at least one that is sufficiently intelligent, can end up in a dispute indeed, then we can continue to ask, as we did before, how such a conflict could be resolved.
It is interesting to ponder what an autonomous algorithm might do to resolve a conflict with itself. Hard to believe that it would go through its issues again and again like its caveman ancestors (algorithmologically speaking). It might be able to escape the infinite loop, perhaps even with the aid of somebody, or something?
If an algorithm could be in a dispute with another algorithm or with a human being, when would an algorithm give in? On an eerier note, when would an algorithm not give in but try to impose on the other party what it deems to be correct – and how? If it considered itself too weak to prevail, would it look for allies or for tools? Would humans qualify for either and if so, would we be the one or the other?
Would an algorithm seek compromise and if so, again, how?
Would anyone, or anything, be able to intervene in a dispute between algorithms and act as the impartial third party that resolves the dispute on its own, by taking the algorithms’ toy away, if you will?
Would an algorithm be open to inclusive dispute resolution involving an impartial third party, that is to mediation, arbitration or litigation? If so, who, or what, would be the mediator, arbitrator or judge? Or would these concepts fail, because, for want of states in cyberspace, there is no public executive and enforcement is more effective when done privately? Would algorithms bother?
If anybody should bother in the long run, will there be public courts (or something similar) in cyberspace some day, with jurisdiction over humans and algorithms alike, and some kind of public executive? How would one enforce anything against an algorithm anyway? Regarding the enforcement against algorithms, Lessig’s code comes to mind again: code as a regulator as significant in cyberspace as law in physical space. Public code as public authority.
But did not public authority always come as part of a state before? Does this mean there will be cyber states some day?
I’m sure this is disputable.
Image by Mark Freeth — http://tinyurl.com/gp4yq6d (CC BY 2.0, http://tinyurl.com/p4devpc)
This article is written by Patrick Dahm.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.