New Pathways to Civil Justice in Europe : Challenges of Access to Justice

This book focuses on four topical and interconnected, innovative pathways to civil justice within the context of securing and improving access to justice: the use of Artificial Intelligence and its interactions with judicial systems; ADR and ODR tracks in privatising justice systems; the effects of increased self-representation on access to justice; and court specialization and the establishment of commercial courts to counter the trend of vanishing court trials. Top academics and experts from Europe, the US and Canada address these topics in a critical and multidisciplinary manner, combining legal, socio-legal and empirical insights. The book is part of ‘Building EU Civil Justice’, a five-year research project funded by the European Research Council. It will be of interest to scholars and policymakers, as well as practitioners working in the areas of civil justice, alternative dispute resolution, court systems, and legal tech. The chapters “Introduction: The Future of Access to Justice – Beyond Science Fiction” and “Constituting a Civil Legal System Called “Just”: Law, Money, Power, and Publicity” are available open access under a Creative Commons Attribution 4.0 International License via link.springer.com. Preface Contents Chapter 1: Introduction: The Future of Access to Justice-Beyond Science Fiction 1.1 New Pathways: A Project for the Future 1.2 The Challenge of Artificial Intelligence in Courts 1.3 Privatisation of Dispute Resolution: The Controversial Rise of Consumer ADR in Europe 1.4 Self-Representation in Civil Justice: Taking Lawyers Out of the Equation? 1.5 Court Specialisation and the Rise of International Commercial Courts 1.6 Concluding Remarks, Future Pathways, and New Frontiers References Part I: Digitalisation and AI Chapter 2: The Human Control Over Autonomous Robotic Systems: What Ethical and Legal Lessons for Judicial Uses of AI? 2.1 Introduction 2.2 A Preliminary Distinction: Personal vs. Operational Autonomy 2.3 Autonomous Weapons Systems and the Boundaries of Normatively Acceptable Autonomy 2.4 Machines ́ Autonomy and Human Responsibilities: The Case of Surgical Robots 2.5 Lessons for Judicial Applications of AI 2.5.1 Assessing the Normative Landscape for Human-Machine Shared Control in Judicial Affairs 2.5.2 Preserving Meaningful Human Control in the Courtroom 2.5.2.1 The Quality of Human Control 2.5.2.2 A Normative Approach to Human-Machine Distribution of Control Privileges 2.6 Concluding Remarks References Case Law Chapter 3: Court Information Technology: Hypes, Hopes and Dreams 3.1 Introduction: Courts and Information Technology 3.2 Three Worlds of Information Technology 3.3 Courts Process Information 3.4 Hope, Dream, or Hype? Digital Procedures 3.4.1 The Procedure 3.4.2 Key Features of the System 3.4.3 Hope or Dream Come True? Improvements 3.5 Nightmares: Why Is Reforming Court Procedures with IT So Difficult? 3.6 Making the Dream Come True: Options for Court IT 3.7 Conclusion References Chapter 4: The Computer As the Court: How Will Artificial Intelligence Affect Judicial Processes? 4.1 Introduction 4.2 The Computer As the Judge 4.2.1 What Is Artificial Intelligence? 4.2.2 Replacing Judges with Algorithms 4.3 The Computer As the Courtroom 4.3.1 Online Dispute Resolution for the Courts 4.3.2 Augmented Intelligence As a Tool Towards Access to Justice 4.4 Conclusion References Case Law Part II: Privatisation and ADR Chapter 5: Delivering Justice 5.1 Multiple and Diverse Dispute Resolution Pathways 5.2 Is Justice Delivered? 5.2.1 New Techniques: ADR and Mediation 5.2.2 New Technology 5.3 Failure of the Adversarial Model 5.3.1 The Switch to New Pathways and Intermediaries 5.3.2 Wider Functions Delivered by New Intermediaries 5.3.3 Justice: Fairness As Well As Law 5.3.4 Looking Outside the Box 5.4 The Required Sequence of Functions 5.4.1 Information, Advice, Assistance, Filtering, Triage 5.4.2 Dispute Resolution Process 5.4.3 Data, Feedback and Intervention to Change Performance, Behaviour and Culture 5.5 Designing an Integrated System 5.5.1 Funding 5.5.2 Skills 5.6 Conclusion: A Time for Change References Chapter 6: Trust and Transparency and the Ombuds: Justice Behind Closed Doors? 6.1 The Perspective of an Ombuds 6.2 Consumer ADR, Justice Behind Closed Doors? 6.3 Characteristics of the Ombuds Model 6.3.1 Giving Advice and Support to Consumers: Putting It Right 6.3.2 Complaint Investigation, Adjudication, Remediation: Putting It Right 6.3.3 Feeding Back to Traders, Giving Traders Advice and Support: Setting It Right 6.3.4 The Big Picture-Using Data and Insights, Working with Sectors, Regulators and Governments: Getting It Right 6.4 Trust and Transparency 6.4.1 Information and Accessibility 6.4.2 Digitisation and Vulnerability 6.4.3 Governance and Accountability 6.5 Trust, Transparency and the Ombuds: Justice Behind Closed Doors? References Chapter 7: CDR in Belgium: The Special Place of the Belgian Residual ADR Body 7.1 Introduction 7.2 Tasks of the Consumer Mediation Service 7.3 Procedure 7.3.1 Case Assessment 7.3.2 Case Handling 7.4 Types of Disputes 7.5 Way of Working and Perception 7.6 Operation 7.6.1 Management Committee 7.6.2 Funding 7.6.3 Annual Report and Recommendations 7.7 Some Observations 7.7.1 Perception of the CMS 7.7.2 Admissibility of the Procedure 7.7.3 Impartiality 7.7.4 Recommendations 7.8 Conclusion Reference Chapter 8: How to Avoid a Trial: In Praise of ADR and Ombudsmen 8.1 Introduction 8.2 ADR Is an Efficient Option for Consumers 8.2.1 A Consequence of All This Is That ADR Can Be a Better Option Than the Court System, Especially for Vulnerable Consumers 8.3 The Procedural Safeguards of ADR 8.4 ADR Relies on Confidentiality, Not Secrecy 8.5 ADR Schemes Must Be Monitored 8.6 When Public Interest Supersedes Confidentiality 8.7 Conclusion Reference Chapter 9: Analysis-Defiances-Reflections in Germany 9.1 Introduction 9.2 Analysing the status quo of ADR in Germany After the Implementation of the Transposition Act 9.2.1 ADR in Numbers 9.2.1.1 Data from Germany 9.2.1.2 Trilateral Comparison with the Netherlands and Sweden 9.2.2 Yea, Nay, Maybe? The Information Obligation 9.2.3 Residual ADR Entities 9.2.4 Fundamental Legal Questions: Courts and ADR-A Complementary System? 9.2.5 Practical Cases to Illustrate the Procedure of the Allgemeine Verbraucherschlichtungsstelle (Kehl) 9.2.5.1 Case Study 1: `Fine Tuning ́ 9.2.5.2 Case Study 2: `Ms Communication ́ 9.2.6 Conclusion 9.3 The Defiance of Consumer Dispute Resolution 9.3.1 Cross-Border ADR/ODR and Language Barriers 9.3.2 Costs 9.3.3 Limitations of ADR? 9.3.3.1 Multiple Parties Involved 9.3.3.2 Unclear Facts Because of Insufficient Evidence 9.3.4 Conclusion 9.4 Reflections and Outlook References Part III: Self-Representation Chapter 10: Self-Representation and the Courts: Some Policy Observations from the Netherlands 10.1 Introduction 10.2 What Is Self-Representation? 10.3 Opposing Trends: Increasing Complexity v. Demand for Accessible and Effective Problem Solving 10.3.1 Increasing Complexity of Society and Its Disputes 10.3.2 The Need for `the Actual Problem to be Effectively Solved ́ in Court for Citizens (`Effective Justice ́) 10.4 An Example: The Consulting Judge 10.5 Another Example: Divorce Cases-The Divorce Without Damage Project 10.6 Appeals Proceedings from Cases Without Legal Representation 10.7 Law on Experiments in Civil Justice 10.8 Information for Citizens: A Precondition to Self-Representation? 10.9 Questions and Conclusions from a Dutch Policy Perspective References Chapter 11: With and Without Lawyers: Empirical Research on Legal Representation in Dutch Civil Court Cases 11.1 Introduction 11.2 The Landscape of Legal Services in the Netherlands 11.3 Context and Design of the Study 11.4 Results 11.5 Conclusions and Discussion Appendix: Research Instruments A1 The Use of the Research Instruments Rating the Quality of Introducing Documents Rating the Quality of Conduct at Court Hearings A2 The Survey Among Litigants A3 Peer Ratings of Documents (Writ, Answer) A4 Quality Rating of Conduct at Court Hearings References Chapter 12: Justice Without Lawyers 12.1 Introduction 12.2 Challenges to the Place of Lawyers in the Administration of Justice 12.3 The Contingency of Lawyers 12.4 The Necessity of Lawyers 12.5 Conclusion References Case Law Part IV: Court Specialisation Chapter 13: The Pros and Cons of Judicial Specialization 13.1 Introduction 13.2 Pros and Cons of Specialized Courts 13.3 Judicial Specialization in Italy 13.4 Conclusions References Chapter 14: International Commercial Courts: Specialised Courts? 14.1 Introduction 14.2 Asia and the Middle East 14.2.1 General Remarks 14.2.2 The Dubai International Financial Centre Courts (DIFC Courts) 14.2.3 The Singapore International Commercial Court (SICC) 14.3 The European Landscape 14.3.1 General Remarks 14.3.2 The Commercial Chamber in Frankfurt am Main 14.3.3 The (Unborn) Brussels International Business Court 14.4 Beyond Specialization: The Need for Cooperation and Interrelated Structures 14.5 Conclusions References Chapter 15: Anti-specialisation Trends in Dispute Resolution or a Shift Towards a New Paradigm? An Initial Exploratory Analysi... 15.1 The Global Village 15.1.1 A Few Examples 15.1.2 Factors 15.1.3 This Contribution 15.2 The Key Players in the Global Village 15.2.1 The Multinationals 15.2.2 Global Law Firms: Big Law 15.2.3 State Regulators and Legislators 15.3 NGOs, Consumer Interest Associations and Civil Society 15.4 Global Claimant Bar? 15.5 Domestic Courts and Arbitral Institutions 15.6 Third Party Litigation Finance Providers 15.7 Types of Disputes in the Global Village 15.7.1 Nature of the Issue 15.7.2 Interaction with Other Disputes 15.7.3 Nature of Parties Involved 15.8 Dispute Resolution in the Global Village 15.8.1 Introduction 15.8.2 B2S Disputes 15.8.3 B2B Disputes 15.8.4 C2B Disputes 15.9 A Summary and a Reflection References Part V: Concluding Remarks Chapter 16: Constituting a Civil Legal System Called ``Just ́ ́: Law, Money, Power, and Publicity 16.1 The Interaction of Norms, Practices, and Doctrine 16.2 From Exclusionary Judicial Systems to Mandates for Egalitarian Redistribution of Authority: Participatory Parity in Courts 16.3 New Obligations to Lower Entrance Barriers 16.4 Affirmative Obligations to Provide Dispute Resolution Services 16.5 Open to Whom? Participatory Observers as Well as Disputants 16.6 Repeat Players, Privatization, and Public Involvement References Case Law