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.