Will be the impact of technology on commercial litigation in your jurisdiction in the next 5 years?
Litigation (2nd edition)
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.
The evolution of technology will probably have an impact on the form and admissibility of evidence.
Chinese courts are in the process of reforming its court system. For example, the internet courts in Beijing and Hangzhou have started to operate the online trial system, which does not require the parties to appear in court room in person and permit the parties to attend the trial through instant messaging system. No hard copy is needed in such courts if there is no disagreement on the authentication of the exhibits. Another example is that the courts in Shanghai have started to use audio recognition technology for a machine produced transcription. Currently, almost all the courtrooms in major cities of China have the capacity to video the whole process of the trial hearing.
Since all the above technologies are just regional now, it is possible that these technologies are to be used national wide in the next several years.
As far as technology is concerned, we consider that in the near future, the technology will (and it must) also impact commercial litigation.
For instance, we consider developing an online platform to view the judiciary documents is mandatory. In the present, this possibility exists only in some counties.
This would facilitate the access to the documents, so both the parties, third parties and the judge may submit proper documents on the platform and view what the opponent party has submitted.
Technology has already made a significant impact on the way practitioners operate and litigate claims. However, technology has not been fully applied to the way cases are conducted (such as minute taking, Court lists, service of documents and in this respect technology can play an important part in streamlining and expediting processes with a corresponding impact on the average length (duration) of litigations and burden on the Court Registry.
The court proceedings of the Danish courts continue to become more digitalized. However, litigating complex commercial disputes will in our opinion not be materially impacted by technology within the next 5 years but will depend on the essentials of litigation, inter alia, intimate knowledge of the facts of the case, wise tactical procedural decisions, credibility in the conduct of the case and convincing arguments.
Technology has impacted the litigation process rapidly as now the Egyptian authorities allow electronic signatures to be implemented, and there are decrees that may be implemented in the future that allow the parties to file for a case online. Moreover, the Egyptian courts started having electronic data base for all cases and the Court of Cassation judgments are also available through the internet.
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.
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.
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.
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 already has a significant impact. For example, parties are required to file electronic copies of bundles for hearings in addition to a single hard copy bundle. It is intended that at some point in the future all bundles will be lodged in electronic format only. More generally, e-discovery is becoming ever more common and is even encouraged in complex proceedings in order to reduce costs. It is anticipated these and other developments will ensure that the Royal Court and local advocates are as fully able to deal with the practical complexities of conducting complex commercial litigation as lawyers in much larger jurisdictions.
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.
Isle of Man
More use of electronic documentation and bundles before the courts and perhaps the court resolving some interlocutory issues on line.
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.
Over the past few years, there has been an increasing awareness and usage of electronic evidence in commercial transactions and court proceedings. Electronic evidence is considered as the functional equivalent of a paper-based document. Electronic signatures are also considered as the functional equivalent of signatures on a written document. Further, audio, video, and ephemeral evidence, such as text messages and chatroom sessions, are admissible in evidence. The aforementioned rule already applies to all courts in the country.
Moreover, there are already certain courts in the Philippines that are designated as electronic courts or e-courts. E-courts have Automated Hearing Systems, where activities in a hearing are captured real time and court orders are served to the parties minutes after the end of the hearing. E-courts also have special case management systems, which highlight pending incidents and the corresponding deliverables and deadlines. In addition to the current e-courts infrastructure, the Supreme Court’s digital reforms are geared towards having litigants file and serve pleadings through e-mail or in a digital platform, similar to how pleadings are currently filed and served in arbitration proceedings. Thus, we anticipate that reforms in the judiciary will follow the digital trend in arbitration proceedings.
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 and consequently reduce archive space and costs as well as administrative tasks.
In the years to come, law firms will also have to deal with artificial intelligence that may replace lawyers in some legal routine matters, impacting lawyers’ careers and the growth of law firms.
The Slovak Republic has been implementing electronization of the system of courts since 2015. In the past 4 years, the system has significantly improved and the system use has become widely accepted.
The courts communicate with the parties - legal persons - only electronically since in the Slovak Republic, legal persons are obliged to communicate electronically via their mailboxes destined for communication with the authorities and courts. Parties to proceedings are still allowed to file documents also in hard copy, however, the current tendency is to make the entire procedure electronic.
For example execution of claims in execution proceedings is entirely electronic.
We expect that in the next 5 years the entire procedure will be fully electronic (apart from trials).
Already today Swedish courts regularly use technical solutions in commercial cases. This includes requesting the parties to submit their briefs electronically and hearings and/or witness examinations taking place via video conference. Parties and counsels will likely use digital solutions to search, organise and analyse the documentation in larger litigation cases to a greater extent than is already done today, e.g. electronic discovery review software and software for linking witnesses, facts, evidence, and legal issues.
Technology is likely to have a lasting impact on various aspects of commercial litigation in the next 5 years and beyond. In particular, the disclosure process in English courts will likely be affected as Technology Assisted Review (“TAR”) gains increased recognition. TAR allows the parties and the court to sift through vast quantities of available data in a timely and cost-efficient manner. Separately, but relatedly, it appears that automated processes, such as intelligent research tools and “smart” contracts will continue to take over certain tasks traditionally performed by junior lawyers. The automation of basic legal tasks will create an opportunity for lawyers to focus on unique problems faced by their clients; with the best advisers being able to use technology to their advantage and carefully tailor their advice to meet clients’ specific expectations.
The use of technology is currently assisting in facilitating and expediting the litigation process. There are near future plans to enhance the technologies and systems currently used and applying the same on various streams and steps within the process, with the ultimate aim of automating the system to the extent possible. This will eventually lead to limiting the delays and complications caused by bureaucracy.
There are many positive expectations going on in the field of technology and its connection with the law. A new Chief Justice of the Supreme Court was recently sworn in who is well known for his past efforts with technology, so there’s expectation that the Judicial Branch will become more digitally-oriented. In the last two years the Judicial Branch has addressed the need of reducing the use of paper while increasing digital filing, which is not officially regulated but nonetheless can be implemented through practice.
From the blueprint of judicial reform for 2010 - 2025 published by the Supreme Court, in the next 5 years, the Supreme Court will modernize the public service and cases management to an electronic-based system. By 2035, the Supreme Court envisions to have an online adjudication and a single login system for advocates. This system has been introduced last year but has not been effectively implemented yet.
It is a feasible vision as in the recent years, there have been many technological developments introduced by the Supreme Court, which maximize the use of technology to simplify the judicial system.
Court Recording Transcription system in Malaysian Courts has created an efficient tool for litigants where notes of proceedings are recorded and made available to parties immediately. E-filing system has proven to be both effective and efficient way for filing and processing court papers and orders. From the litigation perspective, it is hoped that an application is made available for quick research on mobile devices to aid lawyers attending courts.
The judicial branch has done significant investment to go from paper filing to digital filing. Now the system allows the parties to file motions and all kind of requests online. The case progress can also be controlled online. There are still areas in which technology might help such as witnesses’ depositions via internet and communications among the different courts. But it is improving notoriously.
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.
Over the last years, most cantons have introduced the possibility of electronic communication with the courts via accredited, confidential platforms. In practice, however, this option does not seem to be used very widely. We expect that in the next years, growing experience with the new options (and a noticeable growing tendency of law offices and courts to switch to an electronic filing system) will lead to an increase of electronic communication between the courts and the parties.
Given the very limited scope of (pre-trial) discovery and document production available in Swiss court litigation, we believe that the impact of artificial intelligence programs in Swiss state court litigation will be significantly lower than what can be expected in other (particularly common law) jurisdictions.
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.
Technology has already had a large impact on litigation. Specifically, it has made the interaction between the court and the parties digital, and the hearings are now, for a large amount of the courts, based on digital documents. Implementing artificial intelligence (AI) more actively in both the legal research and in the courts are likely the next developments, but we do not expect to see this happening on a large scale over the next 5 years. Based on the fundamental due process requirements, AI is more likely to assist human judges than to replace them.
This is extremely difficult to assess as, as of today, technology has not yet impacted litigation in Luxembourg. To our knowledge, no step has been taken so far in regards to implementing technology in the Luxembourg judicial system.
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.
Use of information technology in commercial litigation would increase over the next five years. The Judiciary is already using electronic platforms for filing the claims and servicing the documents. Access to information is also expanding and will likely affect the practice and processes of commercial litigation. For instance, list of persons prohibited under the law to make transactions (for various reasons such as bankruptcy) is now available to the public through the portal of Title and Deed Registration Organisation’s subsidiaries.
A digital litigation pilot for claim procedures, introduced in 2017, appeared not successful. It is expected that digital litigation will be introduced (in a simplified form) shortly. Besides, digital litigation has been implemented for litigation at the Supreme Court and the NCC successfully. eNCC, an electronic communication system, allows Dutch counsel to initiate actions, check the status and scheduled next steps, and submit and download documents. This gives the NCC the tools to communicate eﬀectively and provide swift and firm guidance throughout the process.
More general, technology is likely to have a lasting impact on various aspects of commercial litigation in the next years. Sophisticated intelligent research tools allow analysing of vast quantities of data in a timely and cost-efficient manner. We expect that automated processes will enhance lawyers to focus on clients’ specific needs, adding value to available technology.
We expect technology to allow basic changes in litigation. For instance: the electronic filing of petitions, obviating the need for lawyers to go to court; the mandatory exchange of digital pleadings and documents between the parties, or the deposition of witnesses by video conferences, and the use of stenographers.
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.
The impact of technology on commercial litigation and on judicial proceedings of civil cases, in general, is highly anticipated having in mind that measures to implement new technological tools to conduct the judicial procedure, even though we do not anticipate major breakthrough in the function of judicial bodies on the short term period. Already from mid-2000’s judiciary and enforcement systems have implemented several e-justice systems, including electronic case management systems, e-notifications and measures ensuring transparency. However, many of the projects implemented then are already outdated given the phase of the technology development and new technologies are being implemented now. The fully redesigned solution is expected to be relaunched this fall, with aim to make the solutions more user friendly and with fully updated procedures and UX designs.
One of the major planned changes is to make the case management system also usable by the attorneys (e-cabinet), where the attorney’s will also see the cases and the materials by single sign on and relevant solutions. Also new solutions are thought constantly to ensure the speedy service and notification process. Unlike postal or other means of transfer, that can in fact fail, the system of electronic services would be more transparent in function.
It is also possible that the technology of blockchain could be used to ensure the further trust towards the e-justice system, by ensuring the transparency and stability of the system and ensuring there is no technical possibility to intervene within the normal function of the system. In addition to that, even if today some judges accept legal documents submitted in an electronic form through e-mail, it is used in exceptional cases when other means are not available, whereas the electronic cabinet would simplify not only initiation of the proceedings, but also current execution of judicial motions and would make more efficient the protection of the interests of the parties.
We are quite positive that artificial intelligence solutions, including text analysis mechanisms will be developed to assist to raise the effectiveness of the judiciary. Also steps are being undertaken to make it possible to have hearings over the distance, at least for specific motions requiring speedy solution.