Digital Justice Gains Pace

By Claire Donse of DLA Piper for PILnet

The COVID-19 triggered rush to embrace technology to resolve disputes follows a trend over more than a decade. Perhaps starting with eBay, which is thought to have created the first private online dispute resolution system when it launched an online system to resolve disputes arising from eBay transactions in 1999. The eBay resolution system resolves around 60 million disputes per year, allowing the parties to resolve their dispute directly through a guided process using web-based technology. The value of the average dispute resolved by the eBay resolution system is under $100, and the process generally takes 10 days. eBay now uses Square Trade, an online dispute resolution provider that offers two services: a free web-based forum which allows users to attempt to resolve their differences on their own or if necessary, the use of a professional mediator.

Before COVID-19, courts around the world had already begun moving to digitize justice, by adopting electronic case management and filing systems, and by incorporating technology into the management and delivery of existing mechanisms of justice. The UK court system had already been undergoing a modernization process, with telephone and video hearings having become more common in civil matters, especially for interim appearances. Some Tribunals, like the First-tier Tax Tribunal had been piloting remote contested hearings, and there were also online pilots for some civil claims, probate and divorce courts. The Federal Court of Australia permitted electronic filing and hosted a digital court file and case management system.

Now processes that were to be launched later have been brought forward and further investment is being announced. For instance, Japan has accelerated an existing project to allow online hearings. The Hong Kong Government has announced a fund of about HKD$40 million to assist some 700 small and medium sized law firms and barristers’ chambers to procure or upgrade their information technology system and train staff to support the development of remote hearings.

Some jurisdictions, like the Canadian Civil Resolution Tribunal (CRT) in British Columbia, had already taken things a step further, and are operating a fully remote model. The CRT, which was established in 2016, was the first fully remote tribunal. It deals with strata disputes, small-claims disputes, and most motor vehicle personal injury disputes.

With the help of an online navigator, the CRT guides users through the steps for filing documents by asking simple questions and providing appropriate forms. Users upload documents to support their case, and any hearings take place over Skype. Unlike many other other courts, the CRT has remained fully operational during the pandemic, and employees have simply transitioned to working from home.

In the People’s Republic of China, the first ‘cyber court’ opened in 2017 in Hangzhou, followed a year later by similar courts in Beijing and Guangzhou. The cyber courts are reported to have jurisdiction over a range of digital matters, including e-commerce and online trade disputes. Proceedings are conducted via an online interface, where litigants interact with an AI judge via video chat for status conferences and interim matters. Substantive decisions appear to remain the purview of human judges. Evidence is said to be drawn from block-chain records of the disputed transactions, and the entire process, from filing to judgment, takes place online.

As of December 2019, almost 120,000 applications were reported to have been filed in China’s cyber courts and more than 88,000 cases concluded. China has also instituted a ‘mobile phone court’, launched via the WeChat social media platform, that is said to have dealt with more than 3 million matters in less than a year of its launch.

In 2018, the Victorian Civil and Administrative Tribunal (VCAT) in Australia piloted an online dispute resolution system, aimed at increasing access to justice by providing a simple, efficient and effective way to resolve small civil claims disputes. The pilot was very well received, and according to VCAT, shows real potential for reimagining processes to support online dispute resolution, not just in small claims, but potentially also in other types of claims, including minor criminal matters and larger civil matters.

Claire Donse leads the DLA Piper’s pro bono program in Africa, Asia Pacific, Europe, the Middle East and the UK. Claire also works with New Perimeter, DLA Piper’s international pro bono initiative and nonprofit affiliate.

Read Part 4