SEMINAR 4 Thursday 8 October 2020

Normalizing Borders and Civil Disputes (online legal procedure)

Program, abstracts and bios

PROGRAM
Time: Europe: 9.30-10.30 (CET) 8.30-9.30 (WET); Australia: 18.30-19.30 (AET)

Marco Velicogna, Cross-border dispute resolution in Europe: looking for a new ‘normal’ (15-20 minutes)

Elena Alina Onţanu, Normalising the use of electronic evidence in civil procedure. Exploring ways to bring new forms of technology into a familiar normative path (15-20 minutes)

Questions and discussion (20-30 minutes)

ABSTRACTS

Cross-border dispute resolution in Europe: looking for a new ‘normal’
Marco Velicogna
Institute of Legal Informatics and Judicial Systems (IGSG-CNR), Bologna

Free movement of goods, capital, services, and labor within the European Union, the growing role of e-commerce (according to Eurostat, in 2018 nearly 70 % of internet users living in the EU had bought goods or services online and 36 % of these individuals ordered their purchases from sellers based in other Member States), and the changes taking place in the digital world (in particular platformization) are producing changes with which traditional (geographically bounded) forms of justice service provision are having problems to cope.

In the attempt to cope with the change taking place, and based on the principle of subsidiarity, EU institutions deployed a number of legal instruments (directives, regulations, etc.) to facilitate the coordination between national rules in areas such as international jurisdiction, cross-border service of documents, recognition and enforcement, and taking of evidences. Harmonised procedures have also been introduced for certain types of civil and commercial matters. In order to support the use of these instruments, which have failed to achieve the expected results, the European Commission has developed a portal to provide information and services to potential court users. Furthermore, a cross border e-justice services infrastructure (called e-CODEX) has been developed and tested by EU Member States. Once again, the response seems insufficient to establish the new ‘normal’ needed to cope with the radical changes which are taking place.

As a result, more and more people seem to rely on alternative means to resolve or avoid disputes, based on tools provided by the platforms they use to interact. Considering this trend, it may have come the time to re-discuss what is to be valued, acceptable, or aimed for in the cross-border justice service provision, as evolutive changes seems to fail, and more radical actions seems to be required.

Normalising the use of electronic evidence in civil procedure. Exploring ways to bring new forms of technology into a familiar normative path
Elena Alina Onţanu
Erasmus University, Rotterdam

The rapid evolution of technology and digitisation of society are without doubt the biggest accelerators of change in the law and practice of evidence taking. The ongoing pandemic has been an additional incentive towards a total shift in electronic handling of claims, evidence, and delivering of justice in several countries. Although, measures are expected to be temporary they brought with them an increase openness towards the electronic environment and proceedings, and their effects are likely to persist beyond this period of crisis.

Looking at existing domestic legislations regarding electronic evidence, approaches are divergent or even lacking in the area of civil law and procedure.[1] Electronic evidence in civil matters has been left mainly to the free evaluation of the judges. Legislation is scarce and hardly dealing with the various forms of electronic evidence as the legal framework remains mainly anchored in traditional physical forms. The use and reliance on electronic evidence can bring with it series of potential issues judges have to deal with related to privacy of individuals (e.g. GDPR, Art. 8 ECHR), preservation of the material, diversity of sources, authenticity and integrity, legality of obtaining the evidence, and practical issues (e.g. standards, technical equipment needed for their handling, budget/costs for obtaining such evidence, trainings for being able to understand and meaningfully use such evidence). In this, judges are left very much to their inspiration to figure out what type of electronic evidence to accept, the requirements they need to comply with for their valid use, the methods to take such evidence, the reliability of technology, ways to interpret electronic evidence etc. Things become more complex in a cross-border setting. How to figure out what type of electronic evidence to accept? Is an electronic evidence taken in one country retained valid in another and under what circumstances? Should the judge proceed to an interpretation or a handling by correlation?

This paper aims to explore the normative gap in dealing with technology-based evidence in civil and commercial matters and relying on new forms of technology in legal proceedings. The existing EU legislation will be taken as reference point.

BIOS

Marco Velicogna is Researcher at the IGSG-CNR. His main research interests are judicial administration, e-Justice, evaluation, organisational change and the management of innovation. He participated in (and in some cases coordinated) a number of national and international research projects on a broad range of topics including judicial organization, access to justice, quality of justice, EU cross border judicial procedures and e-Justice, and is author of several scientific publications on such topics. He served as a consultant and collaborated with the Italian Ministry of Justice and several international institutions (including the CoE, OSCE, UN and Worldbank) and worked as an advisor in judicial reform initiatives in several countries (Albania, Armenia, Bulgaria, Jordan, Seychelles, etc.).

Elena Alina Onţanu is an assistant professor of private international law at Erasmus University Rotterdam (The Netherlands) and a lawyer with the Bucharest Bar Association (Romania). She collaborated with IRSIG-CNR on a number of projects related to quality of justice and digitisation of cross-border proceedings. Alina obtained her PhD at Erasmus University conducting research on cross-border debt recovery in the EU. As researcher and expert, she is often involved in international interdisciplinary projects regarding cross-border litigation. In her activities Alina focuses on cross-border litigation, digitalisation of procedures, platforms, securing access to justice in a transnational context, and quality of justice.