COVID-19 prompts modernization of justice systems in Latin America
The COVID-19 pandemic has adversely impacted on processing times for cases before the civil courts in Latin America. It has also had the effect, however, of accelerating a modernization of the proceedings conducted before these courts. Before the health crisis, these proceedings were generally processed by way of hardcopy documents and required the lawyers, parties and third parties to appear in person, without involving the use of technology enabling more efficient and swifter processing, which has long been an integral part of commercial arbitration proceedings. Below we take a look at the changes experienced in Chile, Colombia, Mexico and Peru.
In Chile, civil proceedings are processed in a procedure defined in a Code that was enacted over a hundred years ago and has seen few changes since then. At the start of the pandemic, no technology had been included in the processing of these cases, with the only exception of a law enacted in 2016 that replaced hardcopy case files with electronic files, which allowed complete and reliable case files to be made available online, and parties were able to make their filings online, as had already become common practice in commercial arbitration proceedings.
However, the pandemic made it necessary to speed up the pace of change, to allow cases to continue being processed, as far as possible, following the end of the constitutional state of emergency due to a catastrophe which was in force between March 2020 and September 2021, but with continuing health restrictions, which prevented processing from going back to the way it had been done before the pandemic.
Accordingly, a new law introduced, on a permanent basis, new amendments to include the use of technology in the processing of civil cases.
The amendments introduced by this law included the option for decisions that previously had to be notified through a judicial recipient to be notified by the court by email to an address provided by the party. It also included the right to file a petition for the court to authorize remote appearance by video call at hearings held in person, which includes hearings for pleadings before the Superior Courts. This facilitated attendance at hearings, reduced traveling costs and made it easier for lawyers to handle cases throughout the country instead of only in their place of residence.
Ten years ago, Colombia implemented the General Code of Procedure (Law 1564 of 2012), as a modern piece of legislation aimed at speeding up the processing of civil proceedings and unblocking the judicial system. However, despite containing rules that provided, for example, that “in all judicial steps an attempt must be made to use information and communications technology in the management and processing of judicial proceedings, for the purpose of facilitating and enhancing access to justice, as well as broadening its coverage” (article 103 of the General Code of Procedure), in truth these measures only started to be implemented in earnest as a result of the pandemic.
Unable to process court proceedings virtually, the courts remained closed for nearly four months. On June 4, 2020, the Colombian president issued Legislative Decree 806, adopting transitional measures, until June 4, 2022, aimed precisely at enabling resumption of the judicial branch's activities.
Consequently, judges started digitizing files, publishing notices electronically, scheduling virtual hearings and removing surplus formalities such as the requirement for powers of attorney to be authenticated by a notary.
The new legislation introduced by Decree 806 of 2020 also impacted on the conduct of domestic arbitration proceedings. Although the Arbitration Statute (Law 1563 of 2012) has always allowed the use of technology in all steps of the domestic arbitration process, Decree 806 of 2020 brought efficient practices.
Examples include introducing the automatic service of claims, and determining that the claimant only had to send a copy to the other party for the time period for issuing a decision on the claim to start running after the end of two business days. It also increased transparency practices in the conduct of judicial and arbitration proceedings such as the duty always to send a copy to the other party of any statement made to the court or tribunal.
In this way, the pandemic became a source of innovation, tracing the path toward quicker and more economical judicial proceedings. However, what we have seen in practice is that the parties’ steps are swifter, but the courts are continuing to take considerable amounts of time to adopt decisions, and therefore proceedings are still taking longer than would be hoped.
Additionally, with just over four months remaining in the valid term of Decree 806 of 2020, there is uncertainty over the continuity of these measures. Although going back to how things were does not appear to be an option.
The pandemic made it necessary for the state and federal judiciaries to find alternative ways to enable the delivery of justice to continue in Mexico. Digital justice and the implementation of information and communications technology (ICT) became the focus in light of the challenges posed by the pandemic. Various initiatives have even been put forward to reform article 17 of the Constitution to ensure access to digital justice.
After encountering obstacles posed by the absence of legislation or budget, the courts and tribunals have sought out temporary solutions such as scheduling appointments by email or phone for people to be able to file their claims or submissions in person.
Although technology has been implemented unevenly across the Mexican states, two years on from the start of the pandemic we can say that overall an advancement had been made. In April 2020, around 13 judiciaries had e-fling systems; now there are already around 24. At the beginning of 2020 some five judiciaries had a platform offering the option of filing claims or submissions remotely. Now more than 13 judiciaries have this tool, two are creating one, and another two have set up email addresses for receiving claims and submissions.
In relation to the use of online electronic signature, in October 2020 only seven judiciaries offered this option and now it can be chosen at more than 10. The federal judiciary has brought into operation an Electronic Signature Certified by the Judiciary of the Federation (FIREL) enabling the digitization of various steps for delivering digital justice.
From the data it may be concluded that, at least for some judiciaries, online procedures are becoming increasingly common and they have become a feasible option for dispute resolution. At the Federal Administrative Justice Tribunal a proceeding can be conducted entirely online, by classifying court information and including statistical information with data obtained in real time, in certain types of proceedings.
Elsewhere, in the domain of the digitization of court precedents, the judiciary for Mexico's capital city has been a leading player in the digitization of judgments. According to data shared by its president, they have more than 55 thousand digitized judgments on their institutional portal and on the National Transparency Platform. The big challenge they face now is reconciling their publication with the protection of personal data in the digital environment.
To sum up, the pandemic has without a doubt quickened the pace of creation and implementation of digital justice initiatives which appear to be here to stay and to support the speeding up of proceedings by lightening the paperwork load and contributing to enhancing access to justice in Mexico.
The Peruvian authorities have implemented in recent years a number of measures aimed at increasing access to justice, enhancing institutional management and the management of proceedings, along with reducing corruption, through the use of technology.
In relation to the lawsuits coming before the state courts, over the past 15 years work on modernizing the process has been done by the judiciary itself, through administrative decisions (decisions adopted within the institution itself) which added measures to encourage the use of technology. Examples include adoption of the Online Court Case Consultation System (CEJ), a software system for following up on proceedings; creation of the Electronic Notification System (SINOE) use of which is mandatory except for summonses and for decisions ending the proceeding; implementation of the Virtual Court Auction System (REMAJU); promotion of electronic attachments for the seizure of funds in bank accounts; creation of the Court E-Filing System (EJE), among others.
Even though modernization of our justice system is an ongoing task, the need to respond to the new circumstances caused by the COVID-19 pandemic accelerated that transition, for both judicial and arbitration proceedings. In that context, for example, the digitization of case files has become a priority, after witnessing how proceedings conducted using the Court E-Filing System have experienced the fewest delays in these two years of pandemic. Moreover, in 2020, the judiciary approved a virtual hearings plan, clearly instated as a temporary measure, although it remains in use and is expected to remain in place. Without the implementation of that plan, the bulk of judicial proceedings would have stalled. In actual fact, the efficiency of virtual hearings has determined that, with a small number of exceptions (in a few criminal proceedings, for example), in-person court hearings have almost stopped being held.
In relation to arbitration, the Arbitration Law (Legislative Decree No 1071), – as well as the Civil Procedure Code – make no specific reference to the use of technology. However, due to the innate flexibility of arbitration, for a few years now, notices have been sent by email and hearings have been held virtually. Before the pandemic, however, these cases were the exception. The arbitrators that sought to implement these measures in domestic arbitration proceedings were familiar with them after practicing in international arbitration proceedings, and to be able to do so they usually –and rightly– required the parties’ consent.
The pandemic caused the most highly regarded arbitral institutions to adopt measures to facilitate the processing of proceedings in view of the measures restricting movement and gatherings that were adopted by the government authorities. In fact, for example, the Arbitration Center of the Chamber of Commerce of Lima (one of the institutions with the highest number of cases under its administration) issued on April 25, 2020, what it called Practical Note No 1/2020 on the implementation of virtual technology in arbitration proceedings. That document contains a number of rules relating to the filing of requests for arbitration and other submissions through a virtual document handling system (mesa de partes), the notifications to parties and to arbitrators only to the email addresses supplied by them, the use of hosting platforms for sharing documents or files, the coordination and holding of virtual hearings, the use of digital signatures, etc. The Practical Note made the arbitral tribunal responsible for applying these measures in the arbitration proceedings they deal with, unless, after hearing the parties, they determine that they are not viable or enforceable on legal or factual grounds. In all cases, the arbitral tribunals had to secure adoption of the measures “as far as this was possible, by ensuring that the law of the parties is not breached and that grounds for setting aside the award are not incurred”. Because experience of a few of the measures required in the Practical Note is recent, the arbitral institution expressly undertook to monitor their application and evolution, to include –if necessary– the relevant additional changes or implementations. Other arbitration institutions have followed the same route.
It clearly seems that judicial and arbitration proceedings have had to adopt the practices discussed above swiftly and that, beyond the course of events relating to the COVID-19 outbreak, the way in which their efficiency is demonstrated is certain to determine whether the changes will stay.