Introduction
This is an exploratory piece that contemplates the viability of decentralized justice systems ("DJ systems") as alternatives to traditional conceptions of justice systems. In future pieces, I will look into specific components of these DJ systems and reflect on how people around the world have tried to implement novel iterations of DJ systems. This is in the hope of presenting alternative ideas and processes to resolve disputes more efficiently and secure justice.
DJ Systems as they exist today can be broken down into three core components. Firstly, a mechanism to create and maintain trust. Secondly, a method to provide speed and cost efficiency, and finally, a way to secure outcomes that are equitable according to some predefined parameters or justifiable metrics.
In this article, I will attempt to provide a bird’s eye view of the landscape and history surrounding them.
Setting the Stage
DJ Systems are a natural successor to online dispute resolution (“ODR”) systems that began to gain traction in the early 2000’s. However, there are experts who are less optimistic about the growth and adoption potential of centralized ODR mechanisms any more, for a few reasons. The primary reason is that early forays into adoption of ODR systems, except specific initiatives like the internet domain dispute resolution system or Ebay’s ODR system, were attempts at taking traditional ADR processes online without much alteration. Traditional ADR processes such as mediation and arbitration were being conducted online using some communication mechanism without experimentation on how novel features of the internet or new technologies challenged or changed key presumptions that underlay these traditional legal processes.[1]
The intention was to make the traditional arbitration and mediation process as efficient as possible using video conferencing and case management technology rather than changing the "form" in which dispute resolution takes place in order to make it as efficient as possible. This difference in conceptualisation of what ODR "ought" to be created a gulf, wherein some pioneering versions of ODR found massive success but most other versions found lukewarm reception.
This created a massive problem since paradigm shifts in the design of dispute resolution systems had to ride on a wave of acceptance that e-commerce enjoyed in order to find acceptance for themselves.[2] While in the early days of ODR, it was the popularisation of the internet and the rise of e-commerce disputes that accelerated it's adoption, this accelerating growth slowed down.[3]
For example, the Ebay ODR system was designed to address fundamentally new problems that Ebay’s business model presented. Chief among these problems were the lack of trust between contracting parties, low-ticket size of the value involved and trans-national nature of such transactions.[4] So, Ebay’s marketplace model necessitated the design of an ODR system that was fit for Ebay's unique needs.
Thus, by solving new problems created by technology, ODR systems in the 2000’s and early 2010’s were incrementally able to increase trust. This allowed them to embed themselves in people’s daily lives in new ways. Along with the rise of the internet and with the intention of providing an opportunity to displace traditional institutions in a world that slowly but surely preferred doing things on the internet, ODR was able to enter the public imagination.
However, key challenges still remain unresolved. Primary, among these is the lack of transparency and neutrality of the ODR service providers themselves. As ODR systems attempted to move towards more complex and challenging areas of disputes, institutional faith started to deteriorate and intermediary negligence compounded fears even in the minds of people who were early supporters of ODR.[5] It started becoming clear to people that centralized institutions operated and administered by private companies or individuals wouldn’t be a sustainable long-term solution to address the aforementioned issues. Unless ODR companies or startups engendered almost a state-like faith in their independence, neutrality, competence and fairness.
New Beginnings: Blockchain
The foundation of any decentralized justice system is the blockchain. Three characteristics of a blockchain system makes it particularly suited to facilitate decentralised dispute resolution processes.
The first is transparency. By allowing for public access to certain information, blockchain-based systems allow users to verify key pieces of information that engender trust in the processes that they enable.
The second characteristic is immutability. Token blueprints on blockchain networks can enforce a standard of immutability, thus ensuring that a secure and tamper proof record of data is continuously maintained.
The third is disintermediation. Disintermediation allows users on the blockchain to directly interface with each other, with minimal interference required from the intermediary. This is key in the context of DJ systems because in ODR there is certain mistrust with respect to their neutrality, standard of fairness and whether the intermediary is in cahoots with one of the parties, unless administered by the state. A comprehensive primer on blockchain technology, its history and development can be found here.
Over and above these characteristics, blockchain networks are also capable of self executing bits of code at requisite times. These are called ‘Smart Contracts’ which allow for complex tasks to be executed without the fear of any tampering or outside interference. Smart contracts were envisioned as part of Ethereum, by its founder Vitalik Buterin, as he felt the need for blockchain based systems to evolve from currency based tokens to utility and development based application tokens. Further, there was a vision to create Decentralized Autonomous Organizations ("DAOs") which were organizations that were administered through the use of smart contracts. A more detailed examination of smart contracts and DAO’s can be found here.
However, smart contracts cannot resolve complex disputes between parties. What they do allow for presently, is the automated enforcement of certain pre-coded outcomes with minimal time lag and a surety of relief. Additionally, procedural rules can be encoded as smart contracts, which means that there is no need to repose trust in a company or any human to drive procedural trust and fairness.[6]
At the core of these systems is the removal of any single point failure. This means that neither users of the system, such as disputants or judges nor the entity providing the technical infrastructure, can independently take decisions which affect other agents on the network. This presents an interesting possibility in the context of justice systems as this presents potential to solve for the deepest problems, that are at the heart of any concept of justice, fairness and equity.[7]
However, it would be lop-sided to assume that blockchain as conceptualized generally fits perfectly into the core requirements of a justice system. For example, the idea of anonymity can be a double edged sword in the context of a court and needs to be examined and evaluated thoroughly. Complete decentralization can be dangerous as core groups such as the developers cannot enforce standards of fairness as robustly as they may wish to. Models that crowd-source decision making may not be suitable for complex disputes or those which concern key rights of agents. Smart contracts in some cases may be unsuited to capturing varying degrees of subjectivity at the time of framing of contract and encoding or may just be coded without enough foresight. These are just a few potential challenges that need to be addressed.
Conclusion
There are numerous challenges that DJ systems will have to overcome in the coming years. Some technical challenges are likely to pose a more plausible risk, only if these DJ systems scale. Other technical challenges are core questions of the design of the DJ systems. This is besides, a whole host of other legal and ethical challenges that require careful thought and enquiry if indeed the goal is to design a fairer and more equitable future for everyone.
In the upcoming articles, I will look into these issues in more detail and analyze how DJ systems are addressing core questions of justice in disruptive ways.
[1] Deffains, B., and Gabuthy, Y. (2006). Efficiency of online dispute resolution: a case study. Commun. Strat. 201–224.
[2]Katsh, E., and Rabinovich-Einy, O. (2019b). Digital justice: technology and the internet of disputes. Oxford University Press.
[3]Ibid
[4]Ibid
[5]Rabinovich-Einy, Orna and Katsh, Ethan, Blockchain and the Inevitability of Disputes: The Role for Online Dispute Resolution (2019). J. Disp. Resol. (2019).
[6]Ibid
[7]Rawls, John, 1921-2002 author. A Theory of Justice. Cambridge, Massachusetts :The Belknap Press of Harvard University Press, 1971.
Views expressed above are solely of the author.
