MG Law Office, through the contribution of partners Archil Giorgadze and Nicola Mariani, joined by senior associates Ana Kochiashvili, Tamar Jikia, associate Mariam Kalandadze, junior associates Ana Jikia, Lasha Machavariani and Nino Sakvarelidze is partnering with Business Media Georgia which will provide information regarding significant legal changes and issues. In particular, we will highlight significant issues that may be interesting for the operation of your business.
COVID Times: A unique opportunity to transform our judicial system and the way matters are litigated.
The outbreak of the global pandemic exposed the world to numerous unprecedented risks and challenges. Some of the first institutions that had to initially adapt to the pandemic were judicial systems as COVID-19 made it impossible to hold hearings and conduct legal procedures the way we knew it for the past century. Some of the states were forced to rapidly transform conservative, paper-based legal procedures into remote ones. A number of the online adjustments that in theory should have taken years, were in some cases implemented in a matter of days. Some of the changes that the judiciary underwent worldwide, ranged from implementing teleconference hearings, video hearings, to an electronic exchange of court documents and hearings not requiring parties to attend proceedings simultaneously.
The crisis caused by the global outbreak of COVID-19 has shown that judicial systems need to be prepared for effective solutions in order to ensure continuity of judiciary and access to justice in all cases. The pandemic has also demonstrated that traditional courts need to reconsider their practices and this is a momentum to grasp, to introduce, and to develop innovative practices.
Interestingly, a number of countries such as Estonia, Canada, Singapore, UAE, Ukraine, and others started adding a layer of technology to their court systems well before the outbreak of COVID-19. Such changes were primarily caused by weaknesses that were already apparent in the traditional court systems. Litigation, prior to the pandemic was generally associated with exceedingly high costs and fees and a perpetual backlog for certain jurisdictions. Due to these reasons and the additional inhibitions, even before COVID-19, an important part of the population was unable to access justice, with an Organisation for Economic Co-operation and Development review reporting that only 46% of the population worldwide were able to enjoy adequate protection of the law. Therefore, even if the pandemic accelerated the concept occasionally referred to as E-Justice, it has long been on the horizon.
INTERNATIONAL EXPERIENCE
Some of the noteworthy models of E-Justice are the models implemented in Estonia, Singapore, Canada, and the United Kingdom.
Estonia
Estonia, commonly considered as a pioneer in E-Governance, has been incorporating digital solutions to court systems since 2005 and therefore has a 15-year track record. Today, Estonia offers a fully digital written workflow of the court proceedings. In the electronic system, referred to as E-file, relevant parties are able to submit and receive claims, follow through notification process that allows for better monitoring of cases and filing of various appeals, as needed. Thus, initiating a case, following through the procedures, and receiving solutions have all been adjusted to the online sphere. Furthermore, the digital flow has been incorporated at all three levels of the court system, including the Supreme Court. E-file was additionally connected with networks like Police Information System, Prison Information System, and Criminal Case Management System, thus once more enabling access to relevant information via a single connected platform.
Apart from the written format of the online court proceedings, Estonia, similar to a number of states, allows for hearing by video conferences. Although, interestingly, it has decided to leave courthouses open and in limited circumstances, due to special considerations or technological limitations, chooses to conduct in-person hearings.
In sum, as per statistics, Estonian courts, in spite of the pandemic, have been operating similarly to previous years, which means that due to the efficiency of the existing system, the pandemic has not had a large impact on them.
Singapore
Singapore may as well be one of the first countries to have incorporated technology into its judiciary. Modernization of courts could be traced back to the ’90s when the particular focus was placed on creating a better administration of the court cases. Within a decade, Singapore’s audacious reforms have paid off and it was placed back at the top of the Asian Pacific courts. Singapore’s primary motivation was to provide safe and a legally predictable environment that would in turn attract foreign investments.
Similar to the Estonian model, online procedures implemented by the state and supreme courts of Singapore, allows parties to file and to litigate their cases via a common digital platform (ESF system) or to conduct video hearings as needed. Additionally, in order to ensure that those with lower e-literacy skills are not disregarded, Singapore has created a service bureau system, representatives of which are able to provide relevant assistance.
These and a number of other technological changes have allowed Singapore to overcome its historical backlogs and shortcomings, culminating in having the Supreme Court of Singapore achieve a clearance rate of 96% of both civil and criminal cases in a timely fashion.
Canada
The British Columbia Civil Resolution Tribunal (CRT), which is considered to be Canada’s first online tribunal, is not a traditional court and is primarily viewed as a medium for negotiations, that encourages users to resolve disputes without immediate contact with tribunal members (that could most closely be equated to judges).
Via means of financial discounts, it incentivizes parties to the dispute to use an online platform, rather than merely send applications by mail, fax, email and based on the stage of the dispute and interests of the parties it provides for tele-hearing, tele-video hearing services that no longer require a physical presence in the courtroom. Interestingly, some of the modes of the so-called online hearings, allow the use of commonly used applications like Whatsapp, or Messenger. According to its latest annual report, CRT can boast an average time of 79.3 days to deal with a typical dispute.
UAE
Similar to the examples reviewed, UAE has started revolutionizing its court systems well before the pandemic. The process of its digital transformation can be reviewed in lieu of both onshore and offshore courts. Our focus in the noted review will be a system of offshore courts within Abu Dhabi's International Financial Centre, further referred to as ADGM Courts.
Vision to innovate court systems via incorporating the latest technological advancements was closely shared by ADGM’s authorities. In its remarkable journey of digital transformation, ADGM has selected to partner with Microsoft and created a legal platform in which programs of Azure, Office 365, Dynamics 365, Skype, have been updated and tailored to the objectives of the court. ADGM Courts are accessible 24/7, have no geographical limitations, and allow to register, submit documents, access decisions as needed. Similar to some of the models above, ADGM courts provide video hearings arranged via Skype. The platform can also serve as the payment gateway for both clients and lawyers as it provides access to the receipts as required by the parties. Additionally, one of the perks of the noted court system is an embedded evidence file, which can also be accessed electronically.
United Kingdom
In the case of the UK, as well as in cases of Estonia and Canada, online court systems have been in place prior to the pandemic. However similar to examples of the rest of the states, processes here have been accelerated as well. Unlike Canadian CRT, online courts of the United Kingdom allowed for a wider range of services, including civil, family, and even criminal cases. Although, initially, the online court system assisted only in matters of divorce, probate, small claims, and others. Similar to Estonia, the UK Government has improved its online filing applications, allowing for a better digital workflow of relevant documents.
GEORGIAN EXPERIENCE
International practice demonstrates that countries already engaged with judicial digitalization had better results in dealing with the challenges raised by the pandemic. Notably, Georgia has also been developing its electronic judiciary reforms long before the outbreak of COVID-19. Since 2010, Georgia has introduced its own platform for first instance courts for digital proceedings which allowed parties to track updates and access electronic case materials. Additionally, with the implementation of legislative reforms allowing for qualified e-signature, courts of Georgia have launched yet another novelty allowing online submission of claims, complaints, and applications. Regrettably, despite such developments, a unified digital system has not been drawn up yet.
In April 2020, when the state of emergency was declared in Georgia and restrictive measures related to social distancing and gathering in closed spaces were announced, Georgian courts were forced to commence online hearings. Presidential Decree Regarding State of Emergency explicitly noted that it was allowed to conduct online hearings in criminal cases. Additionally, the Decree of the Government related to the State of Emergency allowed remote hearings for administrative review of tax disputes.
In September 2020, the High Council of Justice of Georgia has issued Recommendations to mitigate COVID-19 implications on the judiciary. Unfortunately, despite apparent challenges neither these Recommendations nor the Presidential Decree and the Decree of the Government provide any guidance in relation to the online hearings in civil cases. Furthermore, the Recommendations endorse the courts to postpone hearings if no limited deadlines are applicable. However, civil chambers of the general courts of Georgia held various remote hearings without any procedural guidance or regulations applicable to remote hearings. As a basis for online hearings, courts relied on the provisions of the Civil Procedure Code of Georgia, concerning the possibility to conduct certain procedural actions through remote means and the possibility to conduct hearings through video conference. Despite such an approach, provisions relied on by the Georgian courts until today require the consent of the parties involved in the proceeding and the applicable law is silent as to the consequences of refusal by the party to participate in the remote hearing.
The Georgian experience shows that, in spite of preceding advancements, the introduction of online courts was not a wholly pre-planned or a thought-out process and was caused by the challenges that the judicial system has faced in the wake of the pandemic. However, as judges and lawyers in Georgia have explored opportunities presented by the online judiciary, this created a momentum that allowed parties to grasp and discuss further developments that the Georgian judicial system may implement in this regard. It is without a doubt that the success of the system is largely predetermined by the mindset of those involved, change requires an open mind, and the pandemic despite all its challenges has allowed us an opportunity to reform existing court systems and improve access to Justice.
CHALLENGES RELATED TO DEVELOPMENT AND IMPLEMENTATION OF ONLINE COURT SYSTEMS
An overall glance at domestic and international experiences shows that the first step towards implementing the system of the online judiciary is the revision of an existing policy followed by swift legal reforms. In terms of these, one has to distinguish between two separate approaches, commonly known as automation and transformation. Automation can be understood as an application of the old means to the new ones, thus the mere addition of the WebEx layer to the existing court procedures. Judicial transformation, on the other hand, entails the creation of a completely new policy framework, followed by the overall change of the court systems and hence its legal basis. Thus, unlike automation, judicial transformation is meant to address the question at its core and create an efficient system. The path of judicial transformation was followed by countries like Estonia, Canada, UAE, UK, Singapore that chose to initiate ground-breaking changes and are currently branded as top states when it comes to the online judiciary.
A common concern when building or improving existing court systems is the finances needed for their implementation. It goes without saying that the development and maintenance of IT system requires significant investments. Additional running costs are also required for training, renewal, and upgrading the relevant infrastructure.
Another challenge is the establishment of an adapted legal framework. Certain jurisdictions and their legal procedures may not be flexible to adapt to such changes. Legislative reforms are essential to legitimize the operation of the judiciary in the online format. On certain occasions, such changes may require constitutional amendments which may not be a simple and rapid task to complete.
Despite an inspirational narrative, e-reforms, are not without challenges, and a number of questions arise such as funding for emerging economies, internet coverage, e-literacy of the users, and the overall safety and privacy of the parties. Yet, it is without a doubt that court systems have long been in a dire need of an update and the pandemic, in all its tragedy managed to become a driving force heading towards necessary and anticipated changes. Reforming one of the most traditional systems will not be an easy task, it will largely depend on the authority’s willingness to implement transparent reforms, and having the relevant professionals in the field adopt them.
The goal is to create a better system, rather than a perfect one, and noted examples show that all of the challenges associated with an e-court system can be dealt with. For this to happen, parties involved in the reformation process ought to ensure that the pace accrued during the heights of the pandemic will not be put down when COVID-19 will be fully overcome.
Note: this article does not constitute legal advice. You are responsible for consulting with your own professional legal advisors concerning specific circumstances for your business.
MG Law is the first full-service law firm in Georgia to be founded by international partners. The firm advises a diverse group of Georgian and foreign companies, financial institutions, investment funds, governments, and public enterprises.
Among many other areas, the firm primarily focuses on the following sectors: Banking & Finance, Capital Markets, Arbitration & Litigation, Labor & Employment, Infrastructure, and Project Finance, Energy Law, Real Estate, Tax and Customs, Investment Law, Corporate Law, and Cryptocurrency & Blockchain.
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