eJust is a suite of dispute resolution tools using mediation and arbitration. These platforms are directly accessible online and allow legal professionals to digitise their offer, centralise exhibits, manage exchanges and resolve disputes
Access the eJust mediation and arbitration platforms directly on the cloud
The platform integrates :
Facilitate your negotiations, visualise easily the gap between the parties
Discuss at will with the mediator and the parties
Based on your needs, organise videoconferences that facilitate your exchanges
Quickly visualise, centralise and analyse your cases
The platform integrates :
Based on your needs, organise videoconferences that facilitate your exchanges
Suggest hearing a witness or witnesses
Request the opinion of an expert
Quickly visualise, centralise and analyse your cases
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Make justice move at the speed of your business
Optimise and digitise your offer. eJust allows you to propose a new dispute resolution service via online mediation and arbitration procedures
Your members expand their reach and their clients benefit from an entirely digitised offer: fast, secured and always accessible
Disagreements remain a mere episode in the life of your contractual relationship
eJust preserves the quality of your client and supplier relationships thanks to a digital mediation platform allowing for a quicker resolution of your disagreements
The eJust platforms organise and centralise your disputes
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From the referral to the final decision
Rationalised and digitised procedures
Non-publication of the decisions and exchanges, data encryption
Platforms adapted to your colours with your logo
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Created in 1969, the Association Française des Juristes d’Entreprise (AFJE), i.e. the French In-House Counsels Association, celebrates its 50th anniversary. On this occasion, on January 24, at the Salle Wagram (39-41 avenue de Wagram, Paris 17), the AFJE organises a colloquium focused on European Law, with notably an intervention by Nicole Belloubet, the French Minister for Justice. This event will culminate with a gala.
Thomas Clay, Professor in Law, at the Sorbonne Law School, partner at Clay Arbitration.
Alternative dispute resolution mechanisms are not a recent creation, quite the contrary: they were always there. They can be divided into two categories, depending on whether they result in a negotiated solution (mediation and conciliation) or an outside one (arbitration). The novelty lies, not in the use of the digital in the context of alternative dispute resolution mechanisms, but in its importance. Indeed, emails, digital acts, digital award, data rooms, etc. have been used for quite some time in the context of arbitration proceedings.
The question now is whether we can go further, so that arbitration is not only facilitated but actually replaced by digital technology. In other words, what is to prevent a robot with Artificial Intelligence from solving a dispute by drawing information about similar disputes from an exhaustive database and just importing the median solution. This is dizzying and, in my opinion, is the limit when it comes to online arbitration. However, thankfully, the existing actors on the French market did not take that path.
Even though digital technology can be a powerful facilitator for arbitration, as it simplifies exchanges, archiving, hearings, and even the notification of awards, it has to be properly regulated in order to avoid the progressive denaturation of the process or its replacement by Artificial Intelligence. In my opinion, there are at least two safeguards in that regard: first, the institutions that organise online arbitration must receive an official certification, to guarantee that the process is reliable and serious. Then, a system must be implemented to protect personal data, which can be a very sensitive element in the context of a dispute.
With that being said, and keeping in mind that decisions must always rendered by a human being, regardless of how much help said human may have received from AI, I do not see any limit to the development of online arbitration, notably for small disputes or group litigation, to which it can constitute a particularly suitable solution, from an economical point of view.
Thomas Clay, Professor in Law, at the Sorbonne Law School, partner at Clay Arbitration.
Thomas Clay chairs the “Online arbitration” commission created by the Club des Juristes that will issue its report in April 2019.
Pierre Berlioz, Professor of Law at Paris V Descartes, Head of the Paris Bar School (“EFB°), shares his conception and vision of justice with us.
Before anything else, eJustice is a prospective question for every citizen, and legal professionals that are all concerned. Traditional justice must feed on what eJustice brings to the table to make the law and dispute resolution more accessible, notably through digital service platforms (information on legal rights, alternative dispute resolution mechanisms, case introduction and management, case follow-up, etc.).
And when one talks about public service, this does not only entail making sure that each individual has access to a tribunal, but also guaranteeing that justice, and more generally the law, is globally accessible. eJustice, insofar as digital can facilitate access, fully takes part in this public service that is justice.
Traditional justice and eJustice must not be perceived as competing concepts but as ancillary ones. Citizens now have access to services combining human intervention and digital tools (e.g.: the impots.gouv and amendes.gouv websites and apps). One of the main advantages of the digital is that it overcomes barriers of time and distance by offering 24/7 access, simply with a computer or any other device. eJustice thus allows for a local justice, easily accessible from everywhere.
It is essential to facilitate access to digital technology for those who, either have technical or hardware difficulties to do so, or have security concerns.
All legal professionals and court officers must be associated to the development of local entry points when it comes to the law: it is the role of lawyers, notaries, huissiers[1], etc. Law students could even be involved through legal clinics. Likewise, IT students and innovation labs could also work with legal actors in the creation of IT programs and simplify access to online justice.
At the beginning of the procedure, eJustice is very useful during the pretrial phase[2] for efficiency and cost management purposes.
The implementation of online forums with all the necessary security and confidentiality, for some technical disputes (such as commercial ones), might even, to some extent, replace hearings.
However, in some disputes, for instance in the areas of family law, criminal law or labour law, where the human factor remains essential, “face to face” justice must be guaranteed. The contact between the litigant and the judge must be preserved.
[1] Note from the translator: legal professionals in charge of serving and enforcing legal acts and decisions in France.
[2] Note from the translator: mise en état, i.e. when the case is made ready for trial.
Pierre Berlioz, Professor of Law at Paris V Descartes, Head of the Paris Bar School (“EFB°), shares his conception and vision of justice with us.
Eurojuris, a multi-professional network that brings together more than 1 000 lawyers and huissiers (legal professionals in charge of serving and enforcing legal acts and decisions in France), will gather in Lisbon from January 31 to February 2, 2019.
This event will be dedicated to the presentation of success stories and will highlight the general performance of the member firms.
Benjamin Jean, Open Law’s president*
e-justice embodies the current digital dynamic in terms of access and justice production. It relies on the transformation of the institutions through digitalisation, from the exhibit review in the context of a legal procedure to the rendering and enforcement of judicial decisions.
e-justice has a strong impact on the everyday life of legal professionals, i.e. lawyers, judges, huissiers[1] and notaries. Even more so, e-justice facilitates the recognition of new actors and new roles, and reveals itself through the growing interactions that take place between these actors.
e-justice favours the development of online mediation and arbitration., through platforms and online tools.
Our society is more and more digitised, and the law aims at taking in the relationships linking its actors. It is thus logical that Justice took this matter up early on.
Tribunals have been favouring the development of e-justice for a long time, notably the greater dematerialisation of the legal professionals’ relations, to accelerate the dispute management. Courts picked up on technological opportunities to facilitate access to justice and smoothen relations between the parties.
Interactions between legal actors and judicial institutions are complex to implement and require significant human and financial resources. In the context of this redefinition of everybody’s roles, one will also have to determine which services will remain with the State and which ones will be managed by private actors, whether traditional or emerging (platforms, legal tech companies).
These two options inevitably require these players collaborate.
Finally, the question of open public data, notably legal decisions, must be pursued as it contributes to the development of e-justice and the necessary transparency of information.
Open Law was created in 2014 and gathers legal actors that have an interest in innovation and digital technology. We run programs and work cycles allowing them to collaborate on concrete topics to implement common actions. We notably work on the training of tomorrow’s in-house counsels, how to combine professions, the open data topic and of course towards a wider access to legal decisions.
In 2018, Open Law also created an endowment fund to accompany the digital transition of legal professionals, to finance public interest innovation projects with a societal and ethical dimension.
There is no equivalent to Open Law at a European level, but our members are working on it and we are various actions are being considered in the medium-term, notably through the encouragement of international collaborations.
Open Law has organised “litigation party” days to model and co-build online arbitration solutions that better align with people’s needs.
Moreover, we have funded research projects on the law and the digital world, in collaboration with the University of Montpellier, that brought together lawyers and computer engineers.
[1] Note from the translator: legal professionals in charge of serving and enforcing legal acts and decisions in France.
Specialised in intellectual property law, Benjamin Jean is the president of Open Law and its endowment fund. He specialises in intellectual property management in the context of open models (Open Source, Open Data, Open Hardware, interoperability or more generally Open Innovation and Open Access).
Very active in the Logiciel Libre communities, he administers Framasoft, cofounded Veni Vidi Libri and the ”European Open source & Free Software Law Event (EOLE)” lecture series.
On January 31, 2019, the Legaltech show took place in Paris (at the Armenonville Pavillon).
Organised by the Leaders League group, it gathers legal tech companies and more generally legal actors that have an interest in new technologies around conferences and topic-oriented stands (on block chain, data privacy, litigation management, predictive justice, etc.)
Jean-Guy Mahaud, head of international business within Total’s “Marketing & Services” legal department
Jean-Guy Mahaud has a deep interest for new legal technologies. He is sharing his view on e-justice with us.
e-justice, or digital justice, brings efficient answers to the needs of the individuals and entities that are subject to the law.
Traditionally, an individual or an entity that wants to initiate legal proceedings has to face the complexities inherent to the judicial system, how it works and the possible actions that can be taken in case a dispute arises. Said individual or entity can nonetheless be assisted by a legal professional likely to give relevant advice. But such approach entails costs that can sometimes be dissuasive when linked to the economic capacity of the individual or entity concerned.
Another obstacle is court congestion. People and companies suffer from the delays faced when requesting a binding decision.
Alternative dispute resolution platforms, whether they implement mediation or arbitration, allow parties to obtain a decision quickly, at a pre-determined price, without having to go to state courts, while still being able to resort to a lawyer. However, these platforms can prove ill-adapted when it comes to complex disputes requiring a high level of expertise.
Within our legal department, we are progressively adopting e-justice digital tools. In some of the contracts we sign with our suppliers and clients we notably insert online arbitration clauses. The arbitrator suggested by the platform and selected by the parties meets strict criteria notably relating to his/her expertise (in terms of industry and area of law) and years of experience. This solution allows us to manage costs and act within timeframes that match our operational constrains.
Using such solutions also entails an evolution of the role our in-houses play within the company, since all the actors move along the value chain. In the context of a dispute, in-houses manage the dispute and acts as legal counsel, while lawyers act as arbitrator.
But, beyond the efficient resolution of disputes, such resolution mechanisms can be used as instruments of contract governance.
Throughout the life of a contract, parties can face differences of opinion with regards to the interpretation of certain clauses. This does not necessarily mean they want to start a dispute, in which case it may be useful to resort to a third party, a lawyer certified and registered on an eJust mediation and arbitration platform, in order to get a neutral and impartial interpretation.
As mentioned above, online platforms reach their limits when faced with complex disputes requiring multiple technical expertise, even though such disputes are not frequent.
In the long run, it might be a good idea for mediation and arbitration platforms to allow parties to assess their chances of success beforehand by relying heavily on justice data analysis services (wrongly called “predictive justice”). Platforms would then become fully embedded tools for decision-making and dispute resolution.
Jean-Guy Mahaud is the head of the international business department, which is part of Total’s legal Marketing & Services legal branch. His department is notably in charge of developing and negotiating the contracts necessary to the commercialization of the end-products and associated services on a worldwide scale.
Interested in how advanced technologies interact with the legal field, Jean-Guy has launched several projects aiming at facilitating legal information and culture sharing. Recently, he has developed and set up a collaborative clause library for all Total’s in-houses, under a SaaS model.
Jean-Guy holds diplomas from the Paris II Panthéon-Assas University and the University of Burgundy, where he got his DESS in business law. He also has a LL.M in International & European Business Law » from the Anglia Ruskin University in Cambridge and a double executive MBA from the University of Quebec in Montreal and Paris Dauphine and a DESS in International Management. He holds a CIPP/E certification from the IAPP, he is a member of. He is also a member of the Cyberlex and AFJE associations.
Mamadou Ismaïla Konaté, a lawyer registered under the Paris and the Mali Bar, on ADR mechanisms and e-justice
eJust has the honor of meeting Mamadou Ismaïla Konaté, Attorney at Law, arbitrator and former Malian Minister of Justice. He shared with us his vision of ADR mechanisms and their digitalisation.
OHADA (the Organisation for the Harmonisation of Business Law in Africa), which gathers 17 African states, has set the framework for arbitration, and more recently mediation, through two Uniform Acts. This comes after the shortcomings and the poor performance of the existing judicial state systems became evident. This situation impacts the resolution of commercial disputes. Now, more disputes are being settled via these alternative mechanisms that prove to be completely adapted to disputes involving local actors (whether they are linked to the state or not) international ones and foreign investors.
We noticed that the rules governing arbitration and mediation must be improved so that these ADR mechanisms can be used more efficiently.
This efficiency will also depend on how mediators and arbitrators training will develop, but mostly on an optimal and efficient legal framework.
Finally, I believe there should be a stronger focus on digitised ADR mechanisms when it comes to conducting arbitration and mediation procedures, as eJust is offering through its platforms. Practitioners may be encouraged to use this modern, efficient and secure process.
Even if arbitration can be used to revolve all types of disputes in the business sphere, its cost may be dissuasive. To facilitate access, local solutions with local arbitration centres must be considered in order to better comprehend less technically complex disputes that involve smaller sums of money. These typically imply local economic actors.
However, for complex disputes involving international actors and foreign investments in industrial or service sectors, and larger sums of money, OHADA arbitration becomes very relevant since it now extends to investment disputes.
In an African context, this solution helps overcome issues relating to distance and reluctances linked to the cost factor. Indeed, having one arbitrator come from Nigeria, another from Bamako and the third form Lomé, for an arbitration seated in Johannesburg, proves to be complex, due to distance, traveling costs and logistics.
A platform, such as the one created by eJust, makes arbitration accessible by defeating obstacles and contingencies. It allows for costs and time management.
Moreover, this solution allows to rise above language barriers through the use of simultaneous translation, facilitate a secure transfer of exhibits and a smoother communication between the parties.
Risks still exist and they notably relate to technology and the development of internet, whose accessibility rate is increasing in Africa, with disparities depending on the states concerned.
Awareness and training with regards to these tools, exchanges between arbitrators coming from different continents are crucial to get the attention of the economic actors. Dispute resolution platforms are a vehicle of influence to share good practices and ethics in the arbitration world, notably in Africa.
Mamadou Ismaïla Konaté is a lawyer registered under the Paris and the Mali Bar who has cofounded the largest law firms in Mali “Jurifis Consult”, with offices in Bamako, Conakry, Douala, Yaoundé and Paris. He is an arbitrator, who has taken part and administered several arbitral procedures before arbitration centres in Africa and in Europe (ICC, CCJA, CPAM). He is also an OHADA expert, the former Minister of Justice of the Republic of Mali. He is specialised in questions of public policies related to justice and has a broad view on matters relating to justice and the judicial system, from the sacrosanct independence of justice, the necessary ethic of justice, equipment and logistic matters for the proper distribution of justice, to the adaptation of instruments and the modernisation of structures and judicial institutions.
“Justice en Afrique – Ce grand corps malade”
Mamadou Ismaïla Konaté, Esq. has published a book inspired from his findings on the quality of justice in Africa during his term as Minister of Justice of Mali in 2016-2017.
Despite certain evolutions, individuals and companies still face many difficulties. The author underlines the lack of political will, the lack of training and transparency at every level. He suggests several areas of improvement, notably the increase of the role and influence of OHADA.
Bruno Deffains, professor at Paris II Panthéon-Assas University.
Bruno Deffains, professor at Paris II Panthéon-Assas University, head of the “Business Law and Economics” master and the Digital transition and legaltech DU program, shares with us his vision and analysis of e-justice.
Technological evolutions deeply transform the practice of the law and justice. E-Justice contributes by aiming at providing a better access to justice through efficient and intuitive software solutions that allow for costs reduction when it comes to access to justice for both B2B and B2C clients. When faced with a legal matter, most people are convinced that nothing can be done or that seeking justice will be too much time consuming or expensive. The point here to offer solutions that allow users to act through various intelligent forms: formal notice, small claims, online negotiations, arbitration, etc. These solutions often rely on virtual platforms that generate procedures and help solving the dispute. They create value since they allow Individuals and companies to access justice. The legal world is carrying out its industrial revolution by automating certain processes.
On the legal market, professionals are becoming aware that, because there is no easy access to legal services, and in view of the future of their jobs, it is appropriate for them to change the way they practice law, notably by optimising certain processes.
If we take young lawyers for example, it is quite common for them to encounter difficulties when they graduate from school, and many of those who open their own firms have problems finding clients. The traditional business model is often based on a few wealthy clients. It is in the legal professionals’ interest to think about their future by taking advantage of technologies that facilitate access to justice. These instruments constitute leverage that helps them develop new segments on the legal market. Lawyers and in-house counsels remain necessary in the context of an efficient deployment, insofar as technology provides the service and the professional relies on said technology. When an individual or an entity resorts to a platform to solve a small dispute, it can always do so with the help of a lawyer when necessary. Of course, the goal must take precedence over the technology and legal professionals must grasp these new uses and methods this technology allows.
From an economical point of view, the game theory tells us that a collaborative solution is in principle the best possible outcome in case of a dispute. But is also teaches us that there are many obstacles hindering this collaboration: the parties’ beliefs, information asymmetry, time gain with regard to exchanges, negotiation costs or cognitive bias. The research program in the field of legal economics aims at analysing ways to reduce these obstacles, notably through the development of ADR mechanisms. One can link e-justice and this aim by observing that, on the one hand, by reducing negotiation costs, technology facilitates parties’ negotiations while reducing information asymmetries. On the other hand, platforms have the advantage that they convey less emotions and hence potentially less psychological bias.
But, of course, the tool itself does not work miracles and legal professionals must take ownership of the tools.
The limit is related to the previous assessment. The success of e-justice fundamentally depends on how individuals and entities, and even more importantly legal professionals, take ownership of the technology. We know that, in France, the development of ADR mechanisms has often stumbled on questions of credibility. Justice requires trust and trust must be built, it cannot directly derive spontaneously from the offer. This is undoubtedly what the questions raised during the debate on the Justice bill before the Senate reflected with regards to the lack of certification of the platforms. The main concern is that, similarly to what we have seen with the development of ADR mechanisms, e-justice must not be conceived as a way to divert cases from courts by imposing online dispute resolution solutions in order to ease the workload of judges. It is better to regard e-justice as a way to improve justice efficiency in the interests of individuals and entities by rethinking the role of judges and, bearing this in mind, by reflecting on the role of technology and tools and even on how to divert certain cases from courts.
Alice Pezard, attorney at law and arbitrator was also adviser at the French Supreme Court (“Cour de Cassation”).
Alice Pezard is sharing with us her thoughts on the evolving legal and judiciary world and the new practices it sets forth.
When I was a judge at the French Supreme Court, which was a pioneer in that regard, I am familiar with the transition that took us from an “all paper” world to the “almost everything must be digitised” one. As a lawyer, dispute resolution platforms, as they constitute a new way to access justice, are welcome. It allows us to benefit from new technological means that facilitate our work and “empower” us.
They will never replace state justice, but this interactive and digitised justice is an alternative that allows people, entities and their lawyers to take part in dispute resolution procedures through ergonomic interfaces they can access in a simple and intuitive manner. Costs are reduced. Access to databases is significantly facilitated, more specifically those relating to the so-called predictive justice used to identify the amount of damages typically awarded.
This will not necessarily help save a lot time when it comes to the overall duration of the procedure, notably with regards to the time judges take before rendering their decision, as this phase requires them to take the time necessary to reflect on the case. Nevertheless, with regards to document production, the time gain, as travelling is no longer necessary, can be significant, notably in the context of cross-border disputes.
Any arbitrable dispute could, in theory, be resolved by online dispute resolution platforms, insofar as the contract subject of the dispute contains an arbitration clause or if the parties decide to sign an arbitration agreement, even in family law cases.
I disagree with the trend that tends to oppose “small” disputes, which could be resolved via platforms, to “big” disputes that should be brought to state courts. I insist on the fact that there is no small or big dispute for people.
However, I accept that if a case requires a massive exchange of documents it may be less convenient to use a platform although…
We also have the tendency to set thresholds based on financial stakes, this often is a criterion used to distinguish disputes that are to be resolved by state courts from the others.
In my opinion, the most rational way to go is to base this selection on whether the case requires one or several arbitrators. Platforms could be reserved to disputes only requiring the services of one arbitrator, notably disputes regarding debt collection, shareholders agreement, patent licensing, copyright, family law, etc.
I recommend online arbitration and mediation to the start-ups I advise. For arbitration, I suggest that they insert an arbitration clause in their contracts. In case of a dispute, they will readily adopt this solution. For small companies, and notably the ones developing their activity on an international scale, I also recommend this solution.
To the ones that have doubts when it comes to security, a key question, platforms ensure data encryption and that no exchange will be published.
I am convinced that these digitised solutions will become more and more frequent in the French legal landscape but also on a global scale.
Alice Pezard is an attorney at Law registered under the Paris Bar and an arbitrator. She is listed as an arbitrator with the ICC arbitration court, the CAIP, the Abidjan CJA/OHADA and is a member of the LCIA users Committee. She is also an honorary counsel for the Economic and Financial chamber of the French Supreme Court after having presided the Intellectual Property Chamber of the Paris Court of Appeal. She was adviser at the Treasury Directorate and the General Counsel of the Caisse des Dépôts. She is also linked to Fastarbitre.
Open Law is happy to invite you to the presentation and launch of their Roadmap: 2019 season.
Meet us on Thursday, April 18th at 6.30 PM
at Liberté Living-Lab │ 9 Rue d’Alexandrie, 75002 Paris
New programs, presentation of our next works and main events for the year such as the second edition of the Paris Regtech Forum and the 4th edition of the Village of the Legaltech will be addressed.
Thanks to the constantly renewed commitment of our members and volunteers, and the trust of our community, 2019 will be rich in events, new meetings and innovation!
What will happen?
• Presentations of all Open Law’s programs for 2019;
• Exchanges and debates with the project managers;
• Calls for contributions and skills;
• A cocktail for close the evening.
What is the contribution of economic science with regards to today’s major legal challenges through examples of digital transition and companies’ raisons d’être.
Tuesday, 2 April 2019, from 5:30 pm to 8:30 pm.
This conference is organised by BRED and the Panthéon-Assas University French Association for Economic Science (92 rue d’Assas, 75006 Paris)
For the second time, on March 27th, the annual gathering of legal actors will take place at the Intercontinental Opéra (2 Rue Scribe, Paris, 75009).
For the second time, on March 27th, the annual gathering of legal actors will take place at the Intercontinental Opéra (2 Rue Scribe, Paris, 75009).
More than 10 workshops and meetings are organised with major actors speaking on various topics: GDPR, environmental law, labour law, tax law, legaltech workshop, etc.
Another key moment will be the presentation of winners of the Innovation Awards that will take place during lunch time (lawyers, legaltechs, in-houses, providers).
“As a lawyer, dispute resolution platforms, as they constitute a new way to access justice, are welcome.” Alice Pezard
“The point here to offer solutions that allow users to act through various intelligent forms: formal notice, small claims, online negotiations, arbitration, etc.” Bruno Deffains
Romain Dupeyré is a lawyer registered under the Paris and New York bars.
Romain Dupeyré, a French lawyer from DWF, is giving us his opinion on eJustice and his experience as an arbitrator to have a better understanding of these new online dispute resolution mechanisms.
This new way of accessing justice offers interesting perspectives. In practice, resorting to platforms to solve disputes remains exceptional, compared to state justice.
One of the advantages of eJustice is that is allows users to benefit from a flexibility, inherent to the digital tool, that traditional justice cannot always offer. We notably see many requests in the context of disputes relating to insurance, transports or the hotel industry. eJustice has a lighter procedural structure notably through digital exchanges and a faster review of the facts for a fair, equitable and efficient resolution.
eJustice also democratises arbitration. With online arbitration, individuals and companies benefit from a decision rendered more quickly that has the legal authority of an award, in terms of definitiveness and enforceability. Traditional arbitration will be preferred for high-stake disputes that involve several arbitrators.
Thus, we must take charge of eJustice that can be adapted to each type of needs. Moreover, the Act on Justice Programming (“loi de programmation de la Justice »), currently before the Constitutional Council, will encourage alternative dispute resolution mechanisms.
My professional experience has not led me to use an online arbitration platform yet, but I have had the opportunity to discover eJust, an ergonomic, well-conceived and easy to use tool that complies with all the great arbitration principles (transparency, impartiality, right to be heard).
There is always a latency period between the moment a party inserts an online arbitration clause in a contract and the moment a lawyer is called.
I have presented this online solution to a client, a major French engineering company, to facilitate the management of simple claims that can be directly addressed at the client’s. We must be pedagogical with our clients so that they understand the value of this solution.
Even though it is easy to use and intuitive, online dispute resolution digital tools require a solid prior training, especially in light of the stakes for the company, our client, notably with regards to its economic environment.
I would also like to come back on the Act on Justice Programming that contains two important provisions applicable to platforms:
– The recognition of the transparency principle when it comes to algorithms, i.e., the user must be clearly informed and be aware of the fundamentals behind the algorithm. This does not apply to eJust but the topic is at the heart of many debates;
– The possibility for platforms to request a certification, testament to their quality (confidentiality, financial solidity, personal data management, etc.).
This does not constitute an obligation, since arbitrators and mediators need not be licensed. However, I think we must encourage individuals, companies and in-house counsels, to resort to certified companies. The criteria will notably pertain to the appointment of arbitrators and the technology adopted to secure the various exchanges.
Romain Dupeyré is a lawyer registered under the Paris and New York bars. He is a partner at DWF in Paris where he heads the dispute resolution department. He is also the preferred contact in Paris for all the firm’s “Connected Services”. Romain is the President of the College of Lawyers Specialised in Arbitration and co-authored the “Rules and practice under French arbitration law” (“Règles et pratiques du droit français de l’arbitrage” (Lextenso)).
EUROJURIS FRANCE, a network of more than 1 000 legal professionals.
EUROJURIS FRANCE announces the creation of madecision.com, its very own online mediation and arbitration platform.
This innovative and secured platform uses eJust’s technology and know-how to offer an alternative solution integrating mediation and arbitration procedures, which connects individuals, companies and their counsels, with a wide network of legal professionals.
“madecision.com combines two inseparable advantages: the skills of its experts, all members of the EUROJURIS France network, a cutting-edge technology developed by eJust, a legal tech” explains Sophie Clanchet, the President of EUROJURIS France.
With judicial procedures that last on average 15 months for disputes relating to arrears, traditional dispute resolution before state courts has become a hindrance for many business executives as well as individuals.
A March 2019 OpinionWay survey, conducted amongst SMEs and VSEs execs and ordered by Captain Contrat, highlighted this reality: 69% of the entrepreneurs surveyed spend at least 2 days managing administrative and legal matters each month. This investment constitutes an obstacle for 71% of them. Finally, 57% of them regard managing legal or administrative matters as stressful and weighing on the company’s activity and 38% of them even see it as inhibiting development.
With that in mind, the French Ministry of Justice, acknowledging the existence of these obstacles and the necessity to reform the judicial system, encourages the use of alternative dispute resolution mechanisms (ADR) in order to favour a more amicable settlement of disputes and ensure a better protection of companies.
However, it is clear that ADR remains a mystery for the general public. EUROJURIS members strongly believe that, in a constantly changing world, the justice timeline should align again with that of businesses.
By relying on the eJust technological tool, mediators and arbitrators, all members of the EUROJURIS network, want to simplify in the long haul the resolution of their clients’ disputes.
The platform offers two services:
– Mediation, in which parties resort to a third-party to guide them in finding a common and satisfactory solution. madecision.com allow them to organise the procedure and overcome organisational and logistical difficulties all the while preserving the quality of the exchanges. The mediator, an expert member of the EUROJURIS network, hears the parties separately then together, notably via a videoconference tool, so that the solutions that ultimately arise take into consideration all the needs expressed.
– Arbitration, a private justice solution so far reserved to high-stake disputes, that is now accessible to most disputes. Parties choose to have their dispute decided by an experienced professional. At the end of this confidential procedure, an award is rendered that is as enforceable as a state court judgement.
The mediators and arbitrators registered on the platforms are experts in both the legal field concerned and the industrial area at the heart of the dispute.
All the arbitrators and mediators belong to the selective EUROJURIS France network and are appointed on a case-by-case basis depending on the legal area and economic sector concerned. Arbitrators and mediators all sign a binding statement of independence. The costs of the proceedings are clearly and transparently set forth on the site, depending on the service contemplated.
In the context of arbitral proceedings, madecision.com relies on its selective network of legal professionals to have the award enforced in case the losing party does not voluntarily comply with the award (huissiers).
Some examples of the types of disputes addressed on madecision.com:
Commercial leases, franchising, construction (pre-receipt), co-ownership, competitive damages, intellectual property, counterfeit, licence transfers, cancellation of a sale, debt recovery (rent, invoice, termination fee, etc.), corporate matters (sale of shares, exclusion of a partner, post-sale disputes, contractual breach, contractual termination, etc.)
The Act on Justice Programming 2018-2022 and Reform (“loi de programmation de la Justice ») date 23, March 2019, was just published (JO 24 March).
It extends the scope the previous attempt at amicably settling disputes brought before the District Court (“Tribunal de Grande Instance”) when the claim does not exceed a certain amount (set by decree).
Moreover, the law introduces the optional certification of online conciliation, mediation and arbitration services issued by COFRAC-accredited certification bodies on the basis of specifications published through an order of the Ministry of Justice.
Esteban Perotti, lawyer registered under the Buenos Aires (Argentina)
The administration of justice follows the evolution of society, even if it is from afar, in the sense that it always ends up adapting to its various changes. For several decades now, the development of the digital world resulted in a real revolution in people’s daily lives, as well as in their work environments.
eJustice is a hot topic and certainly the future of dispute resolution. Various tools are used to facilitate the work of legal actors (judges, lawyers, in-house counsels, etc.): research databases, simpler, fast and secure exchanges of correspondence, and a platform that centralises the entire dispute resolution procedure.
Today, there are online dispute resolutions mechanisms in place for small-claim disputes. In the long haul, this experience will apply to the resolution of more and more onerous and complex disputes. eJustice thus appears to be a very promising tool to resolve disputes more efficiently and that is particularly suitable for business law and arbitration. State justice (when it comes to business law, civil law, administrative law) will also have to resort to online platforms to administer certain disputes. This technology will of course reach its limits, notably in the context of examinations, testimonies, experts’ travels, especially in criminal law.
eJustice has 5 main advantages: it is fast, affordable, efficient, simple to use and readily accessible.
It is fast: eJustice helps reducing the duration of procedures, compared to traditional arbitration; for instance, a simple business law case can take between 3 to 6 months, rather than 24. This is done notably by implementing instantaneous exchanges between the parties, which circumvents potential postal delays.
It is affordable: an entirely digitised arbitration proceeding helps reduce fee costs by half, compared to the traditional ones proposed by arbitration centres. The first exchanges that take place between the parties will be organised on the platform, without the need for a third-party to intervene (claim, counterclaim). Thus, the arbitrator only intervenes when the terms of reference are set. Moreover, most cases can be resolved via a settlement, without the intervention of an arbitrator.
It is efficient: the arbitral award is a legal decision that has the force of res judicata, in other words, the decision rendered will be binding for the parties. Online arbitration cases will hence be administered in the same way as in traditional arbitration (whether institutional or ad hoc). The decision will be enforceable in more than 150 countries all over the world.
It is simple: platforms are intuitive. With these platforms, we see a resurgence of a historical legal system through the use of forms: roman law, (procedural formula). The forms are a guide that helps parties entirely draft their request or answer, without breach of form. This simplicity allows to save time.
It is accessible: nowadays, in a digitised society, it is simpler to access a computer than a tribunal; a procedure can hence be more easily initiated. Besides, being more affordable, eJustice procedures also allows for small-claims disputes to be resolved, when yesterday they were not, due to a lack of fund.
Latin-America is no exception, online commerce is blooming, and public life also becomes digitised. For instance, building permits can now be delivered online in Argentina via an app to be downloaded on a smartphone.
Today, some judicial procedures have been digitised (exchange of correspondence, award notifications) but most of them remain offline.
A platform that relied on blockchain was recently created in Argentina, to resolve commercial disputes, notably between developers and their clients. The arbitrators are not all lawyers, some of them are individuals (developers, blockchain users, e-commerce specialists, etc.).
In Colombia, the public sector has taken upon itself to develop a full online arbitration procedure. The Ministry of Justice is working on the implementation of an arbitration for cases regarding movable securities. The procedure proposed by the platform is based on institutional arbitral proceedings, with a request, a negotiation phase (the procedure is hitherto free), the appointment of an arbitrator, the drafting of terms of reference and the notification of the subsequent award within 3 months.
In conclusion, in Latin-America, just like in Europe, justice is becoming more and more digitised, even though the phenomenon remains rather marginal, compared to the reality of commercial exchanges. eJustice seems to be a solution for the future and, to fully develop, requires all concerned legal actors (in-house counsels, law firms, arbitrators, arbitration centres) to use it daily.
Esteban Perotti is a lawyer registered under the Buenos Aires (Argentina) Bar, specialised in Arbitration Law. He coordinates the Andrés Bello Association of French-Latin-American lawyers Commission on arbitration law.
Benjamin English, attorney at law (Avril & Marion) and head of the Eurojuris Lab
Benjamin Enlgish gives us his view on eJustice and the new platform co-created by Eurojuris and eJust.
For several years, we, at Eurojuris, have focused on consumption patterns with regards to the law, legal services and technological models that facilitate access to the law, by analysing fundamental trends, in France and abroad.
Our research indicates that online dispute resolution mechanisms are a reality on the other side of the Atlantic and that the French market is getting ready. These new tools will allow for the resolution of issues inherent to the duration of traditional procedures, to find alternative ways to decongest state courts and offer our clients new first-rate services.
We are glad to see the eJust mediation and arbitration platform tackle the French market through the performance and precision of its product.
We have been fascinated by the approach taken by eJust’s founders from the very beginning. We took time to analyse its potential, the services offered and decided to train quite a few of our members to its use, tested the processes implemented and resolved disputes on the eJust platform.
This experience convinced us entirely. Our strategic reflexion led us to the idea of creating our own online dispute resolution platform, with our list of potential mediators and arbitrators, all members of the Eurojuris network. We saw the interest in joining forces with eJust technology to develop our platform.
Above all, madecision.com is a solution conceived and created by lawyers and huissiers for their clients with all the guarantees our practice entails. We meet our clients’ needs, as they look for a fast, efficient and economical solution to resolve their disputes in a confidential, qualitative and less expensive manner.
With regards to arbitration, we offer a dispute resolution solution for 990 euros excluding tax when the amount in dispute does not exceed 10 000 euros. As indicated above, our platform relies on a wide panel of arbitrators and mediators who cover all areas of law. One of the great innovations pertaining to our solution is the conception and introduction of an algorithm that will suggest arbitrators or mediators based on 2 criteria: the area of expertise and the industry. It is crucial that the legal professional appointed has knowledge of the industry at the heart of the dispute.
Eurojuris is a network recognised for the quality and diversity of its expertise. Eurojuris guarantees that individuals and companies that will use the platform have at their disposal a wide panel of legal professionals who will quickly and efficiently answer their claims. With our platform, we are betting on the parties’ intelligence. Beyond their divergences and their disagreements, they will have the opportunity to choose together this solution to solve their dispute.
Benjamin English was sworn in in 2008 and immediately joined the Avril & Marion team (Saint-Brieuc and La Baule). He is a co-managing partner at Avril & Marion and was Vice-Président of the Eurojuris France network for 3 years where he was in charge of the network’s communication and development. He is a member of various clubs and networks and is a preferred contact for companies in their daily issues relating to commercial law, professional civil liability, business law, competition law, recovery, insolvency proceedings, and criminal business law.
131 Institute launched by CMAP
On Friday April 12th, the CMAP launched the 131 Institute, a training centre dedicated to alternative dispute resolution mechanisms (ADR). The CMAP will provide the participants with several programmes focused on various topics such as: inter-entreprise mediation, mediation within a company and arbitration. In addition to these traditional topics, the Institute will also organise several “131 workshops” composed of several modules focused on innovative topics.
• OHADA arbitration,
• Reasoned negotiation,
• How to accompany a company in a mediation procedure,
• Data protection mediation,
• Communication and systemic approach,
• Enneagram workshop,
• Transactional analysis.
Sumi pilots the Innovation Lab of Lefebvre Sarrut
Lefebvre Sarrut is following several approched that all aim at developing the culture of innovation within the group. This is notably the purpose of the Innovation Lab that I coordinate for the group. The Innovation Lab was created in 2018 by Olivier Campenon, the head of the Directoire, in order to help the Lefebvre Sarrut group embrace various challenges and establish a new purpose in the knowledge economy. The Lab is an entity that focuses on boosting the group’s innovation culture and helping with its deep transformation, thus accompanying our clients in their own evolution on the various markets the group operates on.
The Lab acts from a prospective and experimental perspective. In other words, its purpose is to focus on tomorrow’s clients and to imagine what the group could offer to anticipate their needs.
Practically speaking, it is a matter of:
• Prospection: understand mega trends that transform our jobs, detect weak signals, draw up scenarios to anticipate the future evolutions of our business lines; we will for instance focus on this new and essential concept that is continuous training and how the tools evolving around the CPA (Personal Activity Account or Compte Personnel d’Activité) will transform this mission within companies and HR departments.
• Design: from these scenarios, imagine new offers and projects. At this stage, the point is actually to try out concepts. If they are deemed promising, we will go on with the experiment by collaborating with our R&D department, or external partners if necessary; these topics may relate to work environments, the production of legal documents by our clients, whether they are lawyers or in-house counsels.
• Release: issue and share the Lab’s work within the group as well as outside. Communicate as the innovation Lab of a major company does not amount to Innovation washing, regardless of what may have been written on this topic. It is a much more fundamental goal, i.e. guarantee that this release is everybody’s business within the company and “push” what innovation entails for us, for our jobs and our practice of the law, while being consistent with our values and our raison d’être. Release can also mean guiding third party players, like through the Lefebvre Sarrut accelerator created in collaboration with Village by CA, or the animation of communities outside the group, such as Open Law, an association I represent as VP.
First, it is essential to know yourself/your company, to know what value creation and promise you are can bring within the law industry, even if, fundamentally, disruption and deeply transformative developments are the heart of the matter. A key value at this stage is the sincerity of the approach, the choices and its corollary, transparency and clarity in our actions, both from an internal and external perspective, when it comes to our clients and partners.
In my opinion, boldness is another crucial element. We are going through a dizzying transformation of the way we practice law and how justice is rendered. Bets are being placed as to what the future holds and new usages are being invented as we speak, which is why we all must measure the part we have to play in this evolution, whether we are business persons, entrepreneurs, legal actors.
Finally, industrial sectors are also implementing this ecosystem approach and all rely on the same key principle: openness.
It is crucial to regard openness as a growth and innovation lever. First, because the investments innovation requires often mean getting close to other complementary players, to remain competitive in the face of Anglo-Saxons competitors, for instance but also because digitalisation (which, to me, consists in both the development of platforms and the algorithmicising of processes) pushes us towards expanding our horizons, looking beyond and assimilating changes in the uses driven by this digitalisation, wherever they take place.
There is a change of paradigm that takes many forms: new business models, a closer attention paid to the user’s experience, new workflow processes and organisations, a redefinition of the skills expected on the job market, etc. We must come to terms with the idea that the practice of the law and justice will radically change. These news practices are being engineered right now and being part of it is fascinating.
As mentioned above, the Lab also accompanies third party players, by mentoring students, whether they are part of an entrepreneurship project or they have questions as to their future as legal professionals, by accelerating start-ups with a new programme launched a few weeks ago through a call for applications and that will really starts this week, with the 4 winners of this contest. Other approaches will be contemplated as a variety in formats is as important as the result, or the work in progress that allows via several iterations to grow and better define the outcome sought.
This acceleration programme allows us to open ourselves to an entrepreneurial culture that differs from ours, which is key in such systems and allows for a real cross-fertilisation on both sides. Regarding the four accelerated companies, we believe that each of them, in its own way, is in line with this notion of empowered knowledge that is at the core of our strategy, i.e. an integrated approach, of seen as a service, information made functional.
We really hope this legaltech and regtech accelerator will become a lively and attractive pole for other actors that we know could be compatible with our values and ethics as well as with our motivation to change the rules of the game.
Sumi pilots the Innovation Lab of Lefebvre Sarrut and, in addition to her prospective assignments, coordinates the work of the Lefebvre Sarrut accelerator, in collaboration with Village by CA Paris, which accompanies 4 start-ups for 2 years.
As a promoter that gathers the main actors of the legal world, Open Law has issued its roadmap for the upcoming months. Among its projects, an “open thesis” will be organised, a parliamentary forum dedicated to legal techs will take place next July 1st, and a summer university will be organised in partnership with the Eastern Regional Bar School (ERAGE, Ecole Régionale d’Avocats du Grand Ouest).
Marie Danis, partner at August & Debouzy
Marie Danis is a lawyer specialised in arbitration. She gives her opinion on the stakes relating to the development of online arbitration solutions.
Arbitration is currently being embodied by an individual, and platforms that offer online dispute resolution services are still recent. First, it is important to remember that behind a platform, there is always a man or a woman whose skills and independence cannot be questioned. In that regard, the recent report on online arbitration presented by the Club des juristes clearly stated that “human decision-making must prevail over algorithmic decision-making”.
I see two different relevant approaches in the development of this dispute resolution system: the first one applies to disputes whose amount and complexity are rather low. Online dispute resolution mechanisms can constitute a faster and potentially less costly solution, compared to state courts. The other pertains to disputes involving higher financial stakes (more complex cases submitted to arbitral tribunals and/or higher amounts at stake). Platforms could facilitate the management of these arbitrations. After the cases are pre-constituted online, information could be downloaded on a dispute resolution platform to be exchanged in an adversarial manner and the award could be rendered online, on the platform.
As it already exists in the United States, a service company or a transport company offers a free (or almost free) online arbitration tool (i.e.: the company pays for most of the related costs) to its clients. These online arbitration solutions may represent one of the tools to rethink and improve client relationships or work ones.
Lawyers should use platforms as tools and not see them as competition. These platforms have several potential uses. First, when choosing the dispute resolution clause, they allow to advice for the best option based on the client’s request. Then, they allow to use the time gained to focus on the high added value services to be provided to clients such as procedural strategy, choice of legal arguments, etc.
The main challenge is the easiest access possible to dispute resolution with the best guarantees for users and, cheaper if any procedural costs for one of the parties (consumers, employees, being noted that according to French domestic law, arbitration is optional for them), insofar as they are born by the company offering the dispute resolution service.
Beyond the online arbitration clauses inserted in contracts, conciliation and mediation clauses may also be incorporated.
The development of these solutions necessarily requires the general public to trust these platforms. Promoters and actors in the field of dispute resolution must be very competitive and reassuring as to the confidentiality of the exchanges, the respect of personal data, the security of their platform, the independence and impartiality of the arbitrators, an easy access and the fast rendering of the decision.
The disappearance of intermediaries that has affected many sectors has not touched dispute resolution yet, as the judge still acts as the tutelary figure. Once the culture change has taken place, I am sure that online dispute resolution mechanisms will become a very popular solution for companies.
Marie Danis is a partner at August & Debouzy since 2009 within the Dispute Resolution Arbitration and Business Criminal Law department.
She is recognised in the various national and international rankings. She has developed a specific expertise in international disputes (post-acquisition, gathering of evidence, restructuring).
An active member of the Paris Place d’Arbitrage association, that aims at promoting Paris as the main place for arbitration on a global scale and a member of the Board of the French Arbitration Association, Marie is often appointed as an arbitrator in international disputes.
Nicolas Mohr, Head of mediation for companies, is placed under the Minister for Economic Affairs and Finance.
Nicolas Mohr has been Head of the Company’s Ombudsman since 2011. Before that, Nicolas Mohr was a Sector Manager at Business France and has conducted several missions at the Institution of Higher National Defense Studies and the Ministry of Defence.
The Company’s Ombudsman is placed under the Minister for Economic Affairs and Financeand helps companies and public organisations solve their disputes.
Actions can be brought before the Company’s Ombudsman regarding disputes between private actors, notably between SMEs, and bigger corporations, or between private actors and public ones. One third of the mediations concern procurement contracts.
Mediation appears especially appropriate given the current economy as it allows to unblock situations that can undermine business relationships. For instance, the fact that two economic actors differ greatly in terms of size can potentially create a power imbalance. When before said actors may have chosen not to communicate, because they were afraid, weary or fear reprisals, we can now get out of such situations through dialogue. 93% of our cases come from VSMEs and SMEs.
Moreover, as we notice that business relationships move forward more and more quickly. This, mediation, a process that can lead in many instances to a solution within a few weeks or months, provides the flexibility and agility necessary to this accelerated pace. The Company’s Ombudsman receives more than a hundred requests each month. As a public service, filing a request is free. Typically, these requests regard payment terms. Approximately 75% of the cases brought before the Company’s Ombudsman have found a satisfactory end for both parties.
Economic actors that resort to mediation thus save time and money, money that they can invest in their development instead.
The case is initiated on our website. We already have a network of mediators that are trained, all over the territory.
Within one week, the initiating party gets a call from a mediator in order to exchange, which allows for him/her to better understand the difficulty before he/she contacts the other party if this party has not been already informed. The process is not binding or mandatory for the other party, but it is only rarely rejected.
The mediator explains how he/she will work with the various parties involved, always following the same principles: neutrality, confidentiality, freedom and parties’ empowerment. The role of the mediator is to create a positive atmosphere that will encourage the parties to communicate, understand the other’s position and respective interests in the dispute.
The first exchanges between the mediator and the parties can be done remotely, but the parties are then brought together to fully understand each other.
Everyone talks about collaborative work or co-construction between economic actors. However, this can prove difficult, from an operational perspective, notably when said economic actors differ in size or culture. There is not necessarily enough trust to tackle misunderstandings, disputes. Many difficulties arise from this lack of dialogue.
Mediation is a great tool to restart this dialogue and fully associate parties in the resolution of their disputes and thus reinforce reciprocal trust. The goal will be to provide the conditions necessary to have operational and relevant solutions emerge, rather than to bring them to the table.
The solution is quickly and collaboratively arranged by the parties.
By favouring upstream dialogue in the context of economic disputes, mediation helps create more balanced relationships and economic actors better understand one another.
Morenike Obi-Farinde is a Lawyer, Arbitrator and Mediator in Nigeria
Disputes generally are an integral part of human interactions. The Courts have always been the primary place to resolve commercial disputes in Nigeria before the various legislations, which provide for Alternatives to litigation like Arbitration, Mediation, Conciliation etc commonly referred to as Alternative Dispute Resolution (ADR). ADR was an attempt to deal more effectively and efficiently with growing caseloads in the Courts system and to improve citizens’ access to justice.
As an ADR practitioner, I view ejustice as adaptation of technology to make ADR more efficient and improve access to justice especially in areas where due to the value of the claim vis a vis the cost of redress, no form of resolution is possible. The world has become a global village via our interactions on the Internet. Our online activities raise questions like: How do we resolve these online disputes?; How can advancement in technology be used to achieve prompt and cost effective resolution of disputes that are generated online and offline?; How can we apply technology to advance the administration of justice and improve access to Justice?
Nigeria has a population of approximately 198million people and a fast growing technological space, which is experiencing a growth in the use of available technologies particularly in the areas of e-commerce.
The judiciary and relevant sectors are also making efforts to ensure that the legal space is brought to par with the advancement in technology. The Evidence Act 2011 for instance addressed the lacunae in the procedure of admitting evidence produced by computers in Nigeria.
Lagos State, the Commercial Centre of Nigeria has an estimated population of about 20million. The Lagos State judiciary appreciating the enormous caseload generated by the large population has sought to adapt technology to improve access to justice by the introduction of electronic filing and mandatory upload of court processes,; the recent launch of the e-probate systems 2019 (online application for Grant of probate and Letters of Administration at probate.lagosjudiciary.gov.ng); as well as the inclusion of service by email n the 2019 High Court of Lagos State Civil Procedure Rules provision.
The use of technology including the internet in the resolution of disputes is often times referred to as Online Dispute Resolution. ODR can be used for the resolution of disputes generated online and offline.
Online shopping is becoming quite popular in Nigeria, due to the relative convenience. In a city like Lagos with such huge population , online shopping saves both travel time and costs. Online shopping and e-retail is further driven by the Central Bank of Nigeria’s “cashless policy”, which seeks to reduce the use of physical cash and increase the adoption of various electronic portals for financial transactions.
Source : http://venturesafrica.com
In a recent research conducted by Philips Consulting Limited, on the average, the leading online stores in Nigeria achieve about $2 million worth of transactions per week (N1.3 billion per month.) Despite the economic challenges in the country, such as low income per capita and frequent power outages, internet penetration within the country has shown remarkable growth in the last decade due to pricing and rising number of internet enabled devices along with the desire to connect with loved ones.
Despite this large presence online, there are inadequate dispute resolution platforms in Nigeria to deal with the conflicts that may ensue. For instance, a popular hotel booking site in Nigeria has a dispute resolution clause which reads thus:
« To the extent permitted by law, the provision of our services and these terms and conditions shall be governed by and construed in accordance with French law and any dispute shall exclusively be submitted to and arbitrated by the competent courts of France ».3
The EJust Online Platform is an example of existing software which can be deployed to resolve commercial disputes. This platform which is soon to be available in Nigeria (facilitated by Techlaw Agency) will ensure: confidentiality; speed; security; clear pricing and predictability of costs amongst other advantages.
Morenike Obi-Farinde is a Lawyer, Arbitrator and Mediator in Nigeria. Her passion to adapt technology to improve access to justice led to the creation of Techlaw Agency.
1. This Is Africa’s New Biggest City: Lagos, Nigeria, Population 21 Million’ – Un article de l’Atlantic Daily. Accessible ici : http://www.theatlantic.com/international/archive/2012/07/this-is-africas-new-biggest-city-lagos-nigeria-population-21-million/259611/ (Retour au texte 1)
2. Online Shopping Survey Report July 2014 – A Study of Current Trends in Online Shopping in Nigeria’ Une étude menée par Philips Consulting. www.philipsconsulting.net (Retour au texte 2)
3. https://travel.jumia.com/en-gb/terms-and-conditions Site visité le 22-03-2019 (Retour au texte 3)
Antoine Garapon is a judge, secretary general of the Institute of Higher Justice Studies
Antoine Garapon has agreed to share with us his opinion on digitalisation and its impact on online justice and alternative dispute resolutions mechanisms.
Digitalisation allows for a more direct and simpler access to legal information without having to call a lawyer. However, lawyers still have to contextualise this information based on each situation.
Thanks to digitalisation, some platforms offer to predict the outcome of disputes. I do not believe in predictive justice for epistemological, legal and technical reasons. I do not think it is recommended to “predict” and go down that road. However, insofar as the “pre-predictive” approach allows for some assessment of the potential outcome through technological means, it will help people and companies save time.
Such technological evolution has an impact on how people, companies and judges will behave: the judge will manage a case and will have an idea of how it will turn out. Parties may want to ask their lawyers to find a “settlement” if they are likely to lose the case.
Exactly. People go before the judge when faced with an uncertainty. If such uncertainty is reduced, people will be less likely to bring cases before to court. Given that the pre-predictive approach gives access to plausible and serious assessments on the potential outcome of a case, it will certainly favour alternative dispute resolution mechanisms, which are already, to some extent, affected by artificial intelligence. This will allow for some kind of modelling when it comes to behaviours and the type of cases that are settled.
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I notably think about “small claim” disputes, for instance in the context of internet sales.
Simples disputes can be resolved through online dispute resolution mechanisms, behind a screen, via chatbots or network administrators, since going before a judge would be too complex as well as expensive. As to escompletely digitised process, in which a jury would gather and assess the evidence and an automated decision would be rendered, the point here is to guarantee the quality of the result, whether it is an award or a settlement agreement reached by the parties. Today, the existing offer relies on the skills of the arbitrators and mediators appointed, and, in the context of more complex commercial disputes, on the skills of the lawyers specialised in the field of the dispute.
Dispute resolution platforms facilitate access to law and justice; they must first and foremost inspire total confidence. The quality of the results obtained as well as customer testimonies will be the key factors of the success of these platforms.
Beyond mere announcements and the increasing role of artificial intelligence in dispute resolution, some disputes cannot be entirely resolved digitally at this stage.
It is really the confidence in these online mediation and arbitration platforms that will allow them to develop further, notably to resolve disputes that do not involve large sums of money.
However, I do not think that it is appropriate to legislate on these matters at this stage. The “reputational capital” of these structures will allow them to attract more customers.
Antoine Garapon is a judge, secretary general of the Institute of Higher Justice Studies and a former judge for children. Co-director of “Esprit”, he also chairs the Bien Commun collection with the Editions Michalon and hosts a weekly radio show in France Culture. His last publication is: Digital justice, graphic revolution and anthropological break, PUF 2018 (wirth Jean Lassègue).
Olivier Chaduteau, partner and founder of Day One
Olivier Chaduteau, partner and founder of Day One is a fine connoisseur of our legal ecosystem and new technologies. He has agreed to share with us his views on online justice and the evolutions of alternative dispute resolution mechanisms.
The Lemaire Law of October 7th, 2016 that promotes innovation and the development of digital economy has started an essential process when it comes to accessing the law: the opening of public data and case law in general. The implementation is long but this step is key; if data relating to case law does not become public, we will never be able to talk about online justice. We will only find platforms that will merely introduce mediators to companies. We need to go further than that.
Most lawyers has not shown a real interest in mediation, unlike legal departments that have considered it to be a key topic in their activity.
Why? Because mediation allow them to deal with pre-disputes or prelitigation in a fast, confidential way and to address a major topic that is the speed of business. The speed of justice differing greatly, the best way to come close to a similar speed is to develop ways to resolve disputes quickly.
Lawyers are well aware of this matter, they know that this approach is relevant with regards to their relationships with their clients. However, they do not necessarily have a financial interest to develop such methods, in the short run.
This, in my opinion, can be explained by the growing number of mass small claims disputes or pre-litigation cases. When a company has 100, 200, 300 disputes or pre-litigation cases, said company is not always able to handle them within its legal department, notably because of the time they require and the number of cases that has to be managed.
It is in their interest to deal with these disputes by way of mediation. Digital platforms will be useful here for the resolution of mass claims. This will relieve legal departments. Resorting to the eJust platform will be organised via the insertion of a clause referring to the platform for the carrying out of a mediation or an arbitration. We will thus save time and will relieve in-house counsels who will be able to dedicate time to other strategic tasks. Prelitigation management will then be more cost-effective.
At the moment, despite the clauses that have been inserted in contracts, I think that using dispute resolution platforms has yet to become a habit, which is something we have to work on. We are witnessing a complete change of how cases are being dealt with, this takes time and sometimes requires that we lose a few bad habits (inefficient and/or costly management, etc.).
To get people and companies to resort more to online mediation and arbitration, we must have the referrals and testimonies of those who are already using these mechanisms and to present these best practices for mass small claims disputes.
Beyond the numerous testimonies, referrals from users will create trust, which is why it is in my opinion interesting to present business cases in order to demonstrate the return on investment the eJust solution generates. Finally, a key question any user will ask when faced with the development of the digital in the legal industry is: am I addressing this issue with a human being or do I use a digital solution? Then, do I manage this solution internally or outside? Does the most efficient solution imply human beings or machines? I know that behind eJust there are legal professionals specialised in mediation and arbitration but it is important to know of these various options or alternatives in order to build a convincing and argumentation that makes sense and upholds values when trying to gain public attention.
Finally, I believe that the management of small claims can be observed via the prism of customer satisfaction. In case of difficulty, I have informed my client early on that the problem will be solved quickly, via a platform such as eJust. This allows for an actual customer relationship management policy that aims at improving client satisfaction beyond the “after-sale” service.
Olivier Chaduteau is the founder and acting partner of Day One, a management consultancy firm specialised in Compliance, Legal and Risks. Olivier is a member of the scientific comity of the digital pole of the “Club des juristes” and seats on the Board of the Camus group. Olivier has been auditioned by various commissions: Haeri (2017), Darrois (2008) and Attali (2007).
Olivier teaches a “legal project management” class at the Science Po Paris School of Law, in the context of the “General Counsel” Executive Master. He is the author of several publications, including “the Legal department of tomorrow : towards a new paradigm when it comes to the law within companies”, in 2014.
Olivier is currently writing a thesis in economic science at Paris II Panthéon-Assas on “the law and compliance as tools for greater competitiveness”.
François Pinon is chief compliance officer of the Accor group.
François Pinon, chief compliance officer of the Accor group, is sharing with us his view on alternative dispute resolution mechanisms and the perspectives on the development of online justice.
Historically, the Accor group has had a limited portfolio of disputes, and, when faced with a dispute, has favored amicable settlements. The Accor group has signed the Centre for mediation and arbitration of Paris charter for cross-company mediation, we also tend to consider mediation whenever it is possible. Finally, many of our disputes are solved by way of arbitration, in France and abroad.
We almost insert mediation and arbitration clauses in the contracts we enter into with hotel owners. These clauses are particularly well adapted for long-term contracts (i.e. that may last more than 30 years) that also typically involve cross-border elements (parties with different nationalities, hotel located in another country, etc.) Typically a dispute involving a hotel located in Middle East and an investor established in Europe or another continent would be resolved via arbitration. Our contracts most often provide for mediation before any arbitral or judiciary procedure can be initiated.
At the moment, when it comes to dispute resolution, digital tools are not often used within the Accor group, which can be explained by several factors:
– We do not have many disputes;
– The type of disputes we are involved in, e.B2B. We are not faced with mass disputes, which would require a specific organisation.
Nonetheless, this is something that we could incorporate in the context of our contract management department. In the continuity of a process of contract drafting that would be partly automated, it may be relevant to resort to digital platforms such as eJust to deal with certain disputes.
It is, in my opinion, rather logical that for certain disputes, involving small amounts of money, a group such as Accor resort to an online arbitration platform. If we have not taken official steps in this direction yet, we are not closed to the idea, quite the contrary.
Within the Accor group, and as I mentioned, arbitration is a regular dispute resolution mechanism that we cannot avoid. This implies that we perfectly understand the notion and consequences of arbitration clauses, because when faced with a pathological arbitration clause, arbitration and state justice may overlap. We have recently encountered this situation in Africa.
Moreover, the group and its board favour the use of mediation as much as possible.
Generally speaking, I am sure that the way people perceive alternative dispute resolution mechanisms will evolve, notably through the use of digital platforms. At the moment, people are not sufficiently aware that such platforms exist, but this is, I think, a question of time, pedagogy as well as strategy. Not all companies deliberately use litigation as a strategic weapon. Indeed, litigation is a heavy burden in terms of time, money, resources, etc. By dedicating too much tome to litigation, you do not focus your action on the company’s core purpose. This is counterproductive. This is why, Accor is committed to alternative dispute resolution mechanism, which we find very satisfactory. In the context of ongoing relationships, which may sometimes face conflicts, mediation actually helps empowering parties and thus constitutes a great tool because when the parties find and build together the solution to their dispute, they ultimately come out of it stronger and more cohesive.
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