What, in your opinion, will be the impact of technology on commercial litigation in the next five years?
A lot of changes have been brought at the High Court level by leveraging technology and automating a number of different procedures. We could see more of this take place in the subordinate courts if the bar extends its cooperation. Some things have been streamlined though there is still a lot of room for improvement.
Malta is already focused on implementing an online system allowing the possibility of filing court applications in the Commercial division online via the court registry website with the aim of promoting Malta as a convenient and efficient jurisdiction where commercial disputes can be settled. Within the next five years, we believe that technological advances will help reduce time and costs related to physical filing of court documents and service of court documents. In this respect the jurisdiction is lagging behind.
Following the successful implementation of e-Litigation, the Singapore Courts are driven to further integrate technology in the litigation process in future. Singapore is already taking steps towards a cloud-based electronic discovery platform, to facilitate more efficient trial preparation.
There is also much room for the implementation of technology in the courtroom, which could facilitate advocacy beyond the current practices of the Singapore Courts. Notably, two new Bills (which were read for the Second time in March 2018) are expected to introduce major amendments to the Criminal Procedure Code and the Evidence Act, including the implementation of video-recorded statements for certain vulnerable victims. This allows the Court to take into account the interviewee’s demeanour, in effectively determining the voluntariness of the testimony and the weight that ought to be accorded to it. Such reform certainly paves the way for more intensive use of technology in the courtroom.
Over the last 10 years, different technologies significantly facilitated the conduct of commercial litigation:
- In 2009-2010, the Higher Commercial Court launched an electronic court system allowing parties to monitor all court cases and review judgements (https://kad.arbitr.ru/);
- At the same time, another system was launched, which provided for electronic filing of a statement of claim and other procedural documents (https://my.arbitr.ru/);
- In 2010, procedural amendments allowed to participate in the hearing in the one court through the video-conference arranged by the other court. Also, some hearings are translated publicly online;
- Since recently, in relation to some cases it is possible to get an electronic access to all case materials;
It is expected that the rise of modern technologies, including, first of all, digital intellect, will continue to simplify the work of the courts, especially with respect to routine operations.
Spanish litigation has been greatly affected by technological advances, mainly with the adoption of the LEXNET (ie, a digital court system for document submission and notifications). Its use will probably encompass more areas.
There are already some ongoing projects regarding technology and litigation, such as a very recent proposal to serve claims through e-mail.
From the blueprint of judicial reform of the period of 2010 - 2025 published by the Supreme Court, it is shown that in the next 5 years, the Supreme Court will modernize the public services and cases management to electronic based system. By 2035, the Supreme Court envisions to have an online adjudication and a single login system for advocates.
It is a feasible vision as in the recent years there are many technological developments introduced by the Supreme Court which maximize the usage of technology to simplify the judicial system. One of the technologies that was successfully developed by the Supreme Court is the Information Case Searching System (“SIPP”). The SIPP allows a person to search for any submitted, ongoing, or completed case from all courts within the jurisdiction of the Supreme Courts.
We expect that new technologies will first and foremost facilitate electronic communication between the parties and the court. Courts will move forward with the introduction of electronic dockets. Attorneys will be obligated to communicate through an electronic mailbox (Besonderes elektronisches Anwaltspostfach) in the very near future.
In the next five years technology will have a huge impact in commercial litigation, especially because everything will be done electronically, from submissions and filings, to notifications and summons. Additionally, everything will be available electronically, so there will be less need to go to Courts. This will not only reduce time and costs, but it will also help the environment.
Technology has already contributed to the saving of time from the lawyer’s point of view (electronic submission of judicial documents or on-line monitoring of the dockets) but it is not expected to have a considerable impact for the client for the next 5 years.
The evolution of technology will probably have an impact on the form and admissibility of evidence.
One of the key cost areas in commercial litigation tends to be discovery. The courts in Hong Kong introduced the Pilot Scheme for Discovery and Provision of Electronically Stored Documents in Cases in the Commercial List (Practice Direction SL1.2) in September 2014. With the development of computer technologies, there will be scope for development of e-discovery programs. For example, in February 2016, the English courts for the first time approved the use of predictive coding technology in electronic discovery in Pyrrho Investments Ltd & Anor v MWB Property Ltd & Ors. Predictive coding refers to the review of electronically stored documents by computer software using specifically designed algorithms, where the software grades and prioritises the documents for human review according to their relevance to the issues of a case. The Pyrrho decision acknowledged that predictive coding could significantly reduce inconsistencies and costs to legal proceedings, and it is anticipated that the English case may prompt the Hong Kong judiciary to more readily accept the use of technology in electronic discovery going forward.
Technology has already had a significant impact on commercial litigation in Italy through the implementation of the Telematic Civil Trial system since 2015, whereby service and submission of deeds and consultation of the case-file is now almost entirely operated by Lawyers from their computers, with significant reduction of costs and increase of efficiency.
Algorithm will certainly impact (through platforms like Globality, LexOO and the like) in the counsels’ selection process by middle scale international companies. A.I. will surely have an impact in studying and preparing the case, but much less significant than in other non contentious areas (such as DD). Human Lawyers, although benefitting from the support of A.I., will most likely still retain their crucial, value adding role in recommending the litigation strategy. The impact will therefore be very significant, although occurring in manners different from those which are most commonly predicted.
The increasing willingness of the legal system to explore and embrace electronic alternatives to traditional paper based practices continues apace, for example Ireland's first paperless statutory inquiry commenced in December 2017. Although the courts are still some way from transitioning to e-filing, it is hoped that the increased use of technology in the litigation process, e.g. predictive coding/technology assisted reviews, will have a number of positive effects in the short term.
In our opinion, no substantial changes in the Swiss commercial litigation are to be expected in the next 5 years due to technology. Obviously, new technologies will emerge and open new commercial fields which need to be legally explored and dealt with as it is currently (2018) the case with the blockchain technology, but such developments rather concern the substantive law. As for litigation itself, the legal framework, the course of the proceedings and the procedural rules will likely remain the same for the time being.
Chile has already adopted digital systems at courts; case files are now available via internet at the Justice Administration website. The same path has been followed by CAM Santiago, the institution that provides arbitration and mediation assistance aimed at the resolution of domestic and international disputes. Also in evidence technology should have a relevant impact during next years both in the sort of new evidence that can it be offered as in the way of some evidence may be submitted (e.g. witnesses’ interrogation via digital platforms or apps).
Swedish authorities, including courts, are in general keen to adopt new technology. As of the time of the writing of this article, Stockholm District Court is digitalising virtually all of its internal file management as well as updating all the technology of its courtrooms. The use of participation in court trials by phone or video conference is very common and witnesses are often allowed to give testimony by such means.
For small commercial disputes/credit collection, digital systems are already in use, allowing clients to access proceedings online in real time; these systems will allow law firms to become paperless offices, saving paper, reducing archive space and administrative tasks.
In the years to come, law firms will also have to deal with artificial intelligence that may replace lawyers in some legal matters, impacting lawyers’ careers and the growth of law firms.
Technology has already been adopted by the judicial system where we now have online filing of claims, applications and requests. Parties can follow up on the progress of their claim online, and can obtain memorandums, documents, judgments from the online archive.
The UAE is adopting what is known as the smart government where almost everything can be done electronically. Therefore, technology will have a huge impact on litigation which in my opinion will, once it has matured, reduce the time and effort of the parties and the courts and will make litigation simpler and more time and cost effective. Having said that, these things do not happen over night and will always have room for improvement.
Saudi Arabian courts and tribunals have enthusiastically adopted information technology. Most now require claims to be filed online, and some tribunals require submissions to be provided in electronic format. As a next step, service by electronic means will be implemented. This trend is likely to increase.
The courts have already started digitalising court proceedings. Within 5 years, we expect most oral hearings to be based on electronically stored documents and not printed documents.
Technology—particularly automation and artificial intelligence—will continue to streamline the litigation process. For example, some law firms have started to utilize artificial intelligence to assist in reviewing documents for discovery, a development necessitated by the rise of massive electronic productions.
Austria has a well-tested e-government system in place. As far as the Austrian judicature is concerned, court filings are made electronically (with very rare exceptions owed to document file sizes) and Austrian attorneys and notaries public are even under a legal obligation to communicate with the courts exclusively via the electronic filing system "WebERV" (web-basierter elektronische Rechtsverkehr). WebERV was first introduced in 2007. As for the future, we may expect an increase in the use of technological tools in the preparation and conduct of proceedings, such as 3D animation tools or virtual reality devices to allow for a more interactive scrutiny of the evidence, e.g. in construction litigation.
Since there is no extensive discovery process in Japan, and it is not common for large quantities of documents and electronic data to be handled in Japanese legal proceedings, the impact of technology to search and analyse evidence will be limited.
As to court practice and procedures, documents are still submitted to the court either by hard copies or via fax, although the Supreme Court is currently considering submission via electronic methods.
Disclosure review exercises are most likely to be affected as Technology Assisted Review (TAR) gains increased recognition and other automated techniques are adopted by parties and, most importantly, the courts to sift through the vast quantities of data available. Also, automated processes, such as intelligent research tools and “smart” contracts have and will continue to take over some task previously performed by junior lawyers. This will place even greater emphasis on lawyers to focus on the specific problems faced by their clients and tailor their advice carefully in order to work as efficiently as possible.
The litigation in Danish courts has been digitalized a short while ago, which also provides the clients with more insight into the procedure. This will change the lawyer/client relation.
A law dated 7 October 2016 provides that all court decisions will be made available to the public in the years to come. This law should now grant access to approximately 4 million decisions rendered each year.
Some ‘Legaltechs’ already intend to take advantage of this novelty to calculate – by using an algorithm – the prospects of success or the amount of compensation that can be expected in a particular court. Law firms and courts themselves have already started to use these new tools. This will probably lead to a change in the litigation strategy.
In India, technology has already revolutionized the way research was conducted for preparing a matter. Interestingly, not only several research portals have been developed in the last few years, but a number of mobile applications have also been designed and customised for lawyers in order to provide ready access to case details and other relevant information.
The focus on digitization has resulted in reduced paperwork in legal offices as well as courts. The High Court of Delhi, for example, has successfully implemented e-courts over the last few years and the Supreme Court is also adopting technology to implement an integrated case management system.
Lower courts in India are also expected to adopt technology in their functioning – at least in regularly maintaining and updating their websites, with a view to minimise inconvenience for litigants and lawyers.
Automation in technology is likely to assist lawyers in performing legal research in a more comprehensive manner and would save time on repetitive tasks. Artificial Intelligence (AI) is poised to be the next big thing and is likely to play an extremely significant role in India in the next five years.