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Dispute Resolution for Cloud Services Alma Mater Studiorum – Università di Bologna In collaborazione con LAST-JD consortium: Università degli studi di Torino Universitat Autonoma de Barcelona Mykolas Romeris University Tilburg University DOTTORATO DI RICERCA IN Erasmus Mundus Joint International Doctoral Degree in Law, Science and Technology Ciclo 28 – A.Y. 2012/2013 Settore Concorsuale di afferenza: 12H3 Settore Scientifico disciplinare: IUS20 Dispute Resolution for Cloud Services: Access to Justice and Fairness in Cloud-Based Low-Value Online Services Presentata da: Dusko Martic Coordinatore Relatore Prof. Monica Palmirani Prof. Ronald Leenes Co- Relatore Prof. Marta Poblet Balcell Esame finale anno 2017 Alma Mater Studiorum – Università di Bologna in partnership with LAST-JD Consoritum Università degli studi di Torino Universitat Autonoma de Barcelona Mykolas Romeris University Tilburg University PhD Programme in Erasmus Mundus Joint International Doctoral Degree in Law, Science and Technology Cycle 28 – a.y. 2012/13 Settore Concorsuale di afferenza: 12H3 Settore Scientifico disciplinare: IUS20 Dispute Resolution for Cloud Services: Access to Justice and Fairness in Cloud-Based Low-Value Online Services Submitted by: Dusko Martic The PhD Programme Coordinator Supervisor Prof. Monica Palmirani Prof.Ronald Leenes Supervisor Prof. Marta Poblet Balcell Year 2017 Acknowledgements I would like to extend the most sincere gratitude and thankfulness to my supervisor prof. Ronald Leenes for enduring and guiding me through the arduous process of the thesis writing. Rarely can we meet a person that embodies fairness in dealing with other people at such a high level. I would also like to thank prof. Marta Poblet for the advices and comments that helped me look at things from different perspective. I am truly grateful to prof. Monica Palmirani who leads the LAST-JD program and made possilbe this doctoral project and to Ms Dina Ferrari who helped all of us in times of need. I am also thankful to professors Guido Boella and Antoni Roig and all those who provided supports and cooperation during my research mobility in University of Bologna, University of Turin, Autonomous University of Barcelona and University of Tilburg. Thanks to all my collegeus for support, companion and camaradery. Special gratitude goes to my family who suffered the most. My wife Mirjana as a true life companion has been with me all the steps and helped all the way. Only with her love, kindness and understaning could I have focused on my research. My daughter’s smile helped me to put things into perspective at rare low points. I thank my sister Danijela for belivieing in me more than I do and my niece Mila for hugging me and keeping in good humour. I thank my parents, my mother who was a pillar of support all the way and father for giving me lessons in life. Thank you all so much. Table of Contents Chapter 1 – Introduction ................................................................................................... 1 1. The setting ....................................................................................................................... 1 2. The problem .................................................................................................................... 4 3. Approach and Scope ........................................................................................................ 6 4. Outline and methodology.................................................................................................... 7 Chapter 2 –Access to Justice as Fairness .......................................................................... 10 1. Introduction ................................................................................................................... 10 1.1. Disputes: where, how and is it worth it? ......................................................................................... 12 2. Access to justice ............................................................................................................. 14 2.1. Development of access to justice .................................................................................................... 15 2.2. Forms of access to justice and positive law .................................................................................... 19 2.2.1. Access to justice and human rights ........................................................................................ 19 2.2.2. Access to justice and principles of civil law .......................................................................... 22 2.2.3. Access to justice and consumer protection............................................................................. 26 2.2.4. Access to justice and methods of dispute resolution .............................................................. 29 3. Justice as fairness .......................................................................................................... 31 3.1. The concept of justice ..................................................................................................................... 31 3.2. Rawls’ theory of justice .................................................................................................................. 34 3.2.1. Principles of justice ................................................................................................................ 34 3.2.2. Basic structure of society ....................................................................................................... 36 3.2.3. Procedural justice ................................................................................................................... 37 3.3. Critique of Rawls and alternate theories ......................................................................................... 40 3.3.1. Nozick’s libertarian response ................................................................................................. 40 3.3.2. Communitarian and global justice ......................................................................................... 42 3.4. Independent criterion of fairness .................................................................................................... 43 4. Access to justice as Rawlsian fairness ............................................................................ 45 4.1. Theoretical framework for access to justices as fairness ................................................................ 48 Chapter 3 – Dispute Resolution in Cloud Service Contracts ............................................... 54 1. Introduction ................................................................................................................... 54 1.1. What is the cloud? .......................................................................................................................... 55 1.2. Cloud computing - the underlying technology................................................................................ 56 2. Cloud services - definition .............................................................................................. 59 2.1. Cloud services benefits and adoption.............................................................................................. 62 2.2. Pricing and free cloud ..................................................................................................................... 64 3. Contracts for cloud services ........................................................................................... 68 3.1. Contracts of adhesion in cloud services .......................................................................................... 69 3.2. Terms of Service and cloud services’ policies ................................................................................ 70 3.2.1. Terms of Service .................................................................................................................... 70 i 3.2.2. Service level agreements ........................................................................................................ 72 3.2.3. Privacy Policies ...................................................................................................................... 73 3.2.4. Acceptable use policies .......................................................................................................... 75 4. Dispute resolution in cloud contracts ............................................................................. 76 4.1. Terminology in dispute resolution clauses ...................................................................................... 77 4.2. Dispute resolution in Terms of Services survey ............................................................................. 81 4.2.1. Location for a dispute resolution ............................................................................................ 85 4.2.2. Exclusive choice of a single jurisdiction for dispute resolution ............................................. 87 4.2.3. Courts as exclusive method .................................................................................................... 88 4.2.4. Arbitration in the ToS ............................................................................................................ 89 4.3. Dispute resolution in Privacy Policies ............................................................................................ 90 4.3.1. Privacy Shield as a new framework ......................................................................................
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