Herausforderung Informationsgesellschaft:
Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren

Gefördert mit EU - Mitteln aus dem GROTIUS Programm

International Association of Procedural Law

11. World Congress on Procedural Law : ‘Procedural law on the Threshold of a new Millennium’ 23rd to 28th August 1999, Vienna

The challenge of Information Society: The application of advanced technologies in civil litigation and other procedures

Provisional General Report

I. Introduction

The integration of advanced technologies into the legal system is an issue that concerns lawyers and technicians all over the world. In preparing for the 11^th World Congress on Procedural Law of the International Association of Procedural Law, we have restricted ourselves to the consideration of the potential innovations in the sphere of contentious civil litigation and registration proceedings. To this end we invited countries to submit reports, in which, with the help of a carefully crafted questionnaire, the development and prospects of the country concerned should be assessed. 24 countries responded to our request. This report will attempt to offer an overview of the different developments. The differing starting positions in terms of technological developments and expectations of the legal system have naturally resulted in the emergence of differing emphasis in the evaluation of legal problems. Nevertheless, an overview of the potential problems and their possible solutions can be derived from the individual issues.

The individual reports are concerned to varying degrees with the technical and legal peculiarities of their own legal systems which can only be of limited relevance here. The general report should reflect the progress of the developments and highlight innovative positions that could act as the source of debate for the development of alternatives or as a source of inspiration for similar schemes.

II. The virtual courtroom

Fully digitised court proceedings in the sense that the court buildings are replaced by communication between the parties and the court conducted solely through the medium of modern telecommunications are not yet seriously contemplated. Particularly innovative suggestions in this respect are being pursued in Finland. There, a project group has been set up to examine, amongst other things, ideas for the realisation of a virtual courtroom. The vision of court proceedings in which, beginning with the submission of documents initiating the process and continuing throughout the hearing to the pronouncement and handing down of the judgement, written submissions are conveyed by electronic data exchange and the hearing itself is conducted by video or telephone conferencing is to a great extent technologically unfeasible. There is firstly a lack of the necessary equipment such as computers, video conferencing technology, network capacity and not least an absence of sufficiently qualified personnel. Even if the necessary infrastructure were available or could be put in place in the medium term, no significant effort would be made to make such a process a reality. Where the replacement of court buildings in favour of a sufficiently comprehensive multimedia package has been contemplated, for example in Australia, the disadvantages that could result from the lack of social contact must also be taken into account. Such disadvantages are not restricted to the social isolation that has become a recognised feature of working over distances. There are much more specifically a number of legal viewpoints to be considered. Extensive practical experience correlates the fact that the presence of all decision makers is a necessity. In this respect the personal contact of the parties in the presence of the court is seen as a deciding factor that would be lost in virtual proceedings. Moreover, there would be problems in the assessment of witness testimony to which we will return.

III. The Initiation of Proceedings

Most countries do not recognise the possibility of initiating court proceedings by electronic means. The predominant practice is the submission of the necessary initiatory documents in written format. Occasionally, transmission by fax will suffice. Problems stem in most cases from an attachment to old methods of communication. Electronic documents are seen as a substitute for paper documentation and used expressly for this purpose. As a result, we are attempting to accomplish tasks in written format which are perfectly tailored for the application of the new electronic methods. The transmission of authentic information, such as the statements of claim and the payment of preliminary court costs are the subject of particular focus.

Projects in the USA offer an example of the use of modern methods to respond to legal demands. The possibility exists to submit statements of claim in digital format over the internet directly to the computer of the competent court. The preliminary payment of costs is achieved by the simple handing over of a credit card number. The potential disadvantage that unauthorised pleadings could be submitted has up until now been considered an acceptable one. Such a risk can be dismissed as relatively inconsequential when coupled with the huge gains in productivity and effectiveness. The disadvantages as regards security are at any rate seen as temporary. It is estimated that within a time span of at most 5 years, digital signature technology will be sufficiently widespread to achieve a guarantee of authenticity equal to that of the conventional signature system. Moreover, there are additional plans to give digital signatures to the relevant recipients either during their student period or on entrance to the legal profession. In this way a uniform system could be achieved without excessive problems.

A similarly forward-looking program is being carried out in Austria. There, the electronic initialisation of proceedings is achieved by accessing a closed system. A centrally controlled, legislatively established court administration system governs the electronic communication with the courts. Documents initiating judicial proceedings may be submitted in electronic format so long as they fulfil all necessary form requirements and encounter no obstacles such as electronically non-transferable components. The format of the data transfer to the central processor is governed by regulations. Users of the system, for example lawyers, must possess the necessary equipment. The data is transferred from the user to the central processor. If the information has been entered using the correct format, access is granted. From this point the processing and distribution to the competent courts will take place.

Particularly in claims for payment of debts, electronic processing leads to considerably quicker reaction times. Thus a demand for payment of sums due submitted on the Monday of one week could result in the automated delivery of an order to pay as soon as Thursday of the same week. The user is identified by his log-on and password. Written documentation can nevertheless also be used either as a substitute or in parallel to electronic data transfer.

A very important advance in the application of electronic concepts has been achieved in Finland. There, wide-ranging changes to the law have permitted the suppression of obstacles that stand in the way of a fully electronic initiation of court proceedings. By means of discussions with persons and institutions professionally concerned with the introduction of cases, very significant portions of the new process can be undertaken using the electronic format.

These advances are however in no way representative of the general levels of development. A large proportion of the respondent countries have no provisions for the electronic initiation of cases and further have no plans to introduce it. The orientation of the procedural laws towards the written format is a particular source of difficulty. The procedural regulations often put emphasis on the conventional signature. In addition, the technical conditions that would make such procedures possible are all too often lacking.

As the basic problem for every attempt at innovation, two issues come repeatedly to the fore: firstly, the presence of the material equipment as a previously mentioned necessary condition of every technological innovation, and secondly the conservative nature of the judiciary. The report from England and Wales made particularly clear that the success of every reform, no matter how ambitious the investment, is subject to the individual willingness of those who encounter the problems on a daily basis. The full potential of the integration of new structures can only be realised in so far as the judges themselves recognise the introduction of advanced technology as their responsibility.

Even on the planning level there are considerable differences as to the perceived usefulness of the integration of electronic aids into the judicial process. The possibilities are seen in a predominantly positive light as a necessary future response to the ever-growing demands on the system. Of particular interest in this respect is the report from Peru, from which it emerges that the significantly low incorporation of electronic methods into civil procedure as a result of the poor availability of the necessary equipment is balanced by a strong and concerted effort to achieve a swing towards advanced methodology. This can be contrasted with the attachment in Russia to proven and established systems.

In general the introduction of digital signature technology in the sense of an asymmetric cryptography process is seen as the solution to potential authenticity problems. In Greece it is presumed that the further development of this digital signature technology remains primarily dependant on legal regulation. The guarantee of authenticity is a necessary condition that in the context of considerations of efficacy cannot be disregarded.

Finally, the option is sometimes available to submit on paper initiation documents that are contained on data storage devices. As such, the digital format is nothing more than a method to promote ease of transport. This could even occasionally render the drafting of subsequent judgements easier, in that the preparatory work of the lawyers is available to the judge in electronic form. However, only very limited use is made of this potential. It is generally considered necessary to retain parallel conventional methods for those parties lacking the required equipment to make use of the technical options. With reference to professionals taking part in the legal process it is worth noting that the Austrian approach stipulates the obligatory use of the electronic system, including the possession of the necessary equipment.

IV. File management and organisation

In general, electronic file management still has very little role to play. Systems are generally available that exercise a support function for the judicial administration in the opening of files and general case management. Such a support system might offer the judge procedural guidelines. It will recommend typical steps or offer standard form documents. Thus in the Belgian system the judges have at their disposal word processing and supplementary individual software packages that enable them to automatically call up standardised functions required throughout the procedure. Such systems are also available in Germany and Finland. There are also additional functions offered that provide transparency throughout the course of the proceedings and permit automatic statistical analysis.

Aside from these supportive functions, until now at most only isolated attempts have been made to provide an equivalent to paper filing systems. These tend to be as an addition to the more popular paper files. The potential applications begin with the possibility of processing electronic documents provided by the parties on disk, as for example in Japan. The practice of parallel file management through the use of electronic documentation and the digitalisation of documents submitted in paper format is sometimes used in England and Wales and also in Australia. The system practised in the USA is a fully electronic filing system achieved through the delivery of electronic documents coupled with the scanning in of written documents.

The problem of the authenticity of electronic files can be addressed in the manner previously discussed. So long as the administration of data is accomplished in a closed and internally managed system as it is in Austria, security strategies can be developed that need only be orientated in limited respects towards external interference. If, however, the data exchange is to take place over a publicly accessible system such as the Internet, then more stringent security precautions would be necessary. Digitised signature technology would offer a solution in this respect. The fundamental aspects of this technology were the subject of consideration in the alternative solutions offered by the USA: the documents could either be digitally signed by the lawyers, or alternatively, the court deemed competent could centrally sign the documents to safeguard their unaltered state.

The specialised steps of the legal process that must be translated into electronic documentation are a source of problems. Thus for example in New Zealand the taking of the oath is coupled with a special counter-signature procedure that must first be adapted to electronic file format. In the context of this transfer process, the issue remains that a 1:1 translation from paper into electronic form leaves unexplored the potential advantages of the electronic medium in relation to the paper format. Electronic access to the court could function as so much more than simply a conventional post-box. Standard applications such as the internal assignment of files within the court and the preparation of the files necessary for the delivery of documents to the other party could be accomplished automatically on the entry of the file onto the electronic system. In general, all processes for which a decision by a judge is unnecessary could be automated or at the very least prepared.

There are also fundamental differences in the opportunity for persons outside the legal system to access the data stored within the courts. Here the issues of data protection and system security are of primary importance. In Austria the central data processor permits authorised lawyers access to the files relevant to their cases. Similarly, people in Korea, for example, can obtain information on the current situation of their case via the telephone system or through computers made available for use within the court building. However, these tend to be closed systems internal to the legal system. The information exists partly in coded form, so a generally accessible data transfer is not possible. In Belgium and Taiwan the systems will not release information outside the legal system. It is also an issue of primary concern in England and Wales whether and in what manner the public should be permitted to obtain access to such data. In Australia a judicial decision is considered necessary to indicate to what extent information may be published. In principle, court files are fully accessible to the public. This has however so far never resulted in a serious capacity problem, because as a result of technical and practical reasons publication did not appear possible. The solution to the security problems i.e. the protection of the court system can be seen in the installation of independent computers whose sole function is the provision of information.

All in all, the problems of electronic file management are to be found primarily in the practical application. In addition to the availability of the technical equipment, it also necessarily implies the willingness of all persons involved to accept the new system and to leave behind the conventional paper based system. In this respect, Finland offers an interesting example, as the system for electronic submission of claims was developed in partnership with important potential communications partners. Further, the authenticity of the data must be assured. Digital signature systems must be both introduced and legally recognised. Each of the various groups involved with the court system must conform to a unified standard. The court systems must be protected from external interference. As for the use of the data, a compromise must be struck between the interests of those seeking information and the data protection interests of those whom the information concerns. The choice of medium for the information is an additional fundamental question. Alongside telephones and court computers, networks fall to be considered. It appears possible either to establish a computer network reserved solely for the use of the legal system or alternatively to harvest the communications potential of the Internet. The extent to which cost benefits could be reaped through an attachment to the externally financed investments in the Internet and the compatibility of such information sources will be of relevance to this decision.

V. Delivery of Documents

The delivery or service, as a particular method of giving notice of legally relevant documents employed between the parties to a case, is particularly problematic for translation into electronic systems. There are normally specialised legal regulations, for example the stipulation that documents concerned must be personally physically transferred by a court official. An important element of the delivery is often the ability to prove in a sufficiently concrete fashion the point in time when the delivery took place. This is often the moment when time limits begin to run. The problems of electronic delivery have remained unsolved in most countries. Generally emphasis is placed on the delivery of written documents. Electronic delivery in such a legal situation is only possible when the process is taken over by the electronic system and the legal regulations are amended. The possible scope of current changes is limited, as for example in New Zealand, where as before the physical transfer of the necessary documentation is required, but the transfer can also be accomplished by the handing over of a data storage device on which the relevant documents are stored.

As the first step on the way to a simplified delivery procedure, some countries have permitted delivery by fax. This is sometimes restricted to lawyers, as for example in Korea. These possibilities inevitably pose the question, to what extent the transfer of information by E-mail could guarantee a similar standard of security.

The most frequently discussed systems are to be found in the USA and Austria. In the USA the delivery of documents is seen as a key problem connected to an electronic court process. The software is not yet sophisticated enough to indicate at what point the defendant has actual notice of the claim. The possibility of a supplementary delivery, for example through the deposit of an express notification, is not recognised. The solution to this problem, at least for those legal subjects who are professionally active within the legal system, is considered to be the presence of persons fully authorised to accept the delivery by electronic methods. The possibility nevertheless exists to submit statements of claim by electronic methods and then to send the defendant an express notification.

The Austrian system offers a widely practicable alternative. Every user has his own post-box in the central processor. A record is kept of the time from which a deposited document was accessible in the post-box and at what point the addressee obtained actual notice of it. The possibilities of electronic delivery on this system are however restricted. There is also the parallel option of delivery by conventional means. This can also be made obligatory by the parties if they expressly exclude the possibility of an electronic delivery.

With reference to the question of the authenticity of electronically delivered documents, encryption using digital signature technology comes once again to the fore. Only such systems that rely on publicly accessible transfer methods are in issue. It is evident that the security precautions for the Austrian closed internal system require no in depth analysis. In this respect the normal legal liability of the operator would suffice.

In the context of the debate on the dangers of the use of open networks such as the Internet, reference is sometimes made to the alternative solutions in the conventional system. Even here security risks cannot be ignored. These risks should however be balanced against the huge potential gains in efficiency and increased performance offered by the electronic systems that would translate into shorter processing time. This trade-off is vividly illustrated by the economic efficiency-orientated American point of view.

A further good example of the accomplishment of defined tasks in conventional systems through the application of newly developed electronic tools is offered by the public deposit of written documents. There is a general consensus that publication on the world wide web would achieve a previously unheard of level of publicity and with it greater access and openness of justice in the legal sense. Against this are ranged the conventional systems, in which documents are either posted on the bulletin board of the competent court and/or are required to be published in certain daily newspapers or legal journals within a prescribed period. It is evident that such publicity methods can only ever constitute a somewhat fictitious constructive form of notice. The value of additional possibilities is particularly evident in the Swiss report. Publication on the web is accordingly generally viewed in a positive light. The replacement of conventional publication methods with publication on the net would however contravene express legal regulations concerning the manner in which material should be published.

Despite the better publicity potential and above all the superior circulation of the web in relation to specialist media publications, the issue remains that the Internet is still a source of information to which not everyone either has or could gain access. In technologically advanced states such as the USA, it is estimated that on average 60% of a professional sphere such as the legal profession have an internet connection, and the proportion of the general population would be still lower. Legal regulations based on the possibility of notice of a certain document, albeit empirically demonstrated to be of an essentially fictitious nature, must assure that the practical possibility of obtaining notice exists. A comparison between the relative obstacles of the electronic and conventional systems should therefore be borne in mind.

VI. The Preparation of the Hearing

In order to prepare for the hearing a dialogue will normally take place between the court and the parties. To this end the use of the paper format appears predominant in all countries. Transmission by fax is sometimes acceptable. Occasionally, for example in Australia, the parties will have recourse in their preparation to telephone or video conferencing. There, the parties also have the opportunity to agree individual communications systems between themselves and the court for the case in question.

In contrast, in the USA communication by E mail is much more commonly used. The reason for this can be found in the relatively large proportion of courts and lawyers equipped with internet access and in the quality of the medium, which offers a good value, rapid and accessible alternative to written communications. Communication by E mail in Finland is also similarly progressive. As a consequence of specific changes to the law, written communication between the parties and the court can take place electronically via the net, an option of which many people make good use. On the other hand, in Austria the possibility exists in both the legal and technical sense to accomplish a significant proportion of the necessary documents and communications electronically via the internal legal administration system, but very little use is made of the opportunity. In practice, the lawyers send their documents in written form as before.

The main problem with the use of electronic methods of communication in the preparation for the hearing is in many countries the absence of the necessary infrastructure. Even when, as in Switzerland, a sufficient complement of computer technology is available, they are of limited value when the members of the judiciary make little use of them. The same is true of the lawyers.

The transfer to electronic methods of communication is conditional on the sufficient distribution of the necessary technological hardware. In addition, the adaptation of existing legal regulations must be undertaken. Problems surface here, because regulations generally stipulate written communication, and electronic submissions fail to fulfil the necessary conditions. The legal recognition of digital signature technology is an attempt to get to grips with this problem.

Even the effective solution of these legal and technical issues cannot guarantee the effective exploitation of the potential of electronic methods of communication. The Austrian example provides a convincing illustration of this. Once again it all comes back to the willingness of the legal players to embrace new methods in the search for increased productivity, a point which is clearly made in the report from England and Wales.

With reference to this debate concerning the willingness to accept electronic innovations, it is a fair assumption that considerable mistrust towards advanced technologies and plans for reform predominates within the conservative annals of the judiciary. Thus for example in Russia significant doubt is expressed as to the reliability of advanced technologies. On the other hand it is evident that we have already long placed our trust in every day electronic systems without which neither telecommunications, air travel or mass production would be practicable.

Alongside the issue of the guaranteed authenticity of transferred data, the technical transmission itself and the trustworthiness of the information must be assured. Here it is once again necessary to have recourse to digital signature technology. To ensure the trustworthiness of material transferred, some sort of encryption may be necessary. However, opinion voiced in the United States suggests that the mammoth quantities of data that are being conveyed via the Internet could offer sufficient protection in themselves. One single transmission would be swamped in the huge flood of information.

Further data protection issues arise in the transmission of electronic documentation as a result of the easy possibilities of distribution. In addition, clarification of the question of liability for subsequent changes to the document is needed. This has been the subject of reflection in Switzerland, but it is a problem which has long been accepted in the context of photocopying.

Reference must also be made to the issues of compatibility which will inevitably arise when material is transferred between differently configured systems. In Austria they have gone a long way to solving such problems in that data formats have been standardised. Finally, the issue of the partiality of the court with reference to the communications methods should be discussed in the context of cases in which only one-sided correspondence is initiated. In such a situation there would be the possibility of incorporating electronic reference copies which would ensure full transparency towards all parties to the case without significant additional costs.

The information potential of a search conducted on the world wide web offers only limited problems for a judge. For the majority of respondent countries it poses no particular problems, either because the judiciary do not have sufficient access available to them, or equally because they do not make use of those facilities which do exist. Aside from this key issue, general procedural rules also play a role. The factual information available to the judge will depend to a greater or lesser extent on what the parties themselves have expressly agreed, according to the provisions of the national regulations on procedure. For example in Lesotho, the judge is permitted in reaching his decision to incorporate exclusively the material provided for him by the parties. Against the backdrop of such systems wider issues present themselves. As a rule the judge must independently seek out and examine the applicable law and the related relevant sources in literature and case law. Further, he must incorporate factual situations that are to be taken into account either as common knowledge or as information of which the court has judicial notice. Against this background the question arises if and which information available to a judge could or should be considered to be the subject of judicial notice. If it is concluded that currently hardly any question is not addressed at some point on the net, we are one step nearer to a judicial obligation to search the web.

VII. Verbal Hearings and Proof

A conference link-up through either video or telephone conferencing is a potential alternative in verbal hearings to the full physical presence of all parties in the courtroom, in particular for the hearing of witness testimony. This technology is available for use in the majority of countries. Only in isolated cases, such as Hungary or Greece as a result of the absence of the necessary technological equipment were these possibilities still not discussed. All in all, significant differences in the estimation of the usefulness of such methods in the civil procedure have emerged.

Australia has taken a pioneering role. There, video conferencing has replaced the previously dominant telephone conferencing and is employed to a very large extent. Considerable advantages result from the application of this technology, such as the fact that witnesses need not be heard in related proceedings or travel for large distances to appear. These advantages are recognised to a growing extent in the USA. There, it is common for witness testimony to be introduced on video. Video and telephone conferencing are also employed on demand, in particular in cases which concern a large volume of factual circumstances. (Such as maintenance proceedings)

The technology can however be legally problematic in relation to the direct nature of the court procedure or of the hearing of witness testimony. For example, it is obligatory in Greece for the witnesses and the judge to communicate directly and personally. In particular the examination of witnesses via video link to the court room is not seen as being quite the same. Thus in this respect a change of law would be necessary in some regions of Switzerland, in Hungary and in Lesotho.

The doubts as to whether the trustworthiness and credibility of a witness can be judged sufficiently in a similar manner as in a conventional court constitutes a fundamental weakness of video conferencing. The psychological aspect of the presence in the court room and the personal contact are seen as factors which discourage the witness from attempting to conceal the truth. Doubt is therefore cast on the opportunity of evaluating witness testimony given via videoconferencing. Such a problem naturally becomes irrelevant if the testimony concerns nothing more that the conveying of information, as in the previously mentioned American maintenance cases.

Doubts have been expressed in Australia as to extent of the economic gains that result from the application of this technology. The danger exists that in practice, the fact that the hearing of witness testimony has been made easier could result in the summoning of too many additional and unnecessary witnesses. This reflection is also of relevance to advanced research possibilities that could also result in the availability of excessive volumes of information. The flip side of improved access to sources of information is therefore the recognition of the necessity to impose restrictions to avoid a flood of information.

The problems of the introduction of video conferencing to the main hearing lie primarily at the practical level. Whilst in certain cases changes to the law may prove necessary, they will be restricted to such alterations as are considered necessary to address problems in the evaluation of proof and conformity with general principles of procedural law. Problems are foreseen for example in New Zealand concerning the equal standing of both parties to the case. Additionally, the question of the openness of the procedure has been raised. The proposals tend to suggest that the entire course of proceedings must take place within an official court building. This must be balanced with the loss of efficacy that results if, for example, the possibility of communicating with the courtroom from a place of work via a video link-up is ruled out.

The evidentiary treatment of electronic documents has its origins in the treatment of written authenticated documents. There is an identifiable consensus that a written authenticated document is recognised as having a certain evidentiary weight. In contrast, electronic documents are regarded with considerable mistrust. The national discussions tend to centre on whether electronic documents are encompassed by the special evidentiary regulations that govern written authenticated documents. This is generally rejected in the absence of specific regulations expressly stipulating that electronic signatures and written authenticated documents carry the same evidentiary weight. In this context digital signature technology comes once more to the fore. In countries such as Switzerland that have more precise evidentiary procedural law, the discussion focuses on the electronically authenticated document as the subject of a legal presumption. The debate aims to apply existing legally recognised presumptions to electronically authenticated documents.

A related issue concerns which information should be subject to judicial scrutiny. Electronic information cannot be examined directly by the judge. Instead, it is necessary to employ further aids to transfer the information into a suitable form. This poses the question, in what format electronic information should be introduced into the court room. A starting point can be found in existing rules governing the admissibility of expert testimony. It is also important to ensure that the information presented to the court is actually identical to the electronic information. In the USA an authentication to this effect similar to an oath will be undertaken.

Electronic documents are commonly evaluated by the application of the general evidentiary rules, (See for example the Japanese and Dutch examples.) They are often handled with considerable mistrust, due to the fact that they are technologically easy to alter and the such alteration leaves no trace. Further, the lack of confidence prevalent in the judiciary towards the electronic media contributes to the cautious evaluation of their evidentiary weight. In order to introduce electronic documents as an element of proof in civil proceedings, there is a need for comprehensive legal regulation of digital signature technology. The starting point is the need to be able to attribute a document to a particular author with sufficient certainty. In the USA there is recourse to the considerable experience derived from cases where it was necessary to prove beyond doubt that a file retrieved by an expert from a data storage device had been sent by a particular person and was subsequently deleted (for example, sexual harassment via E-mail.) In such cases it must be proven in the course of the normal evidentiary process that the person concerned is the only person who can possibly be responsible, due to, for example, precautions incorporated in the system. Specific security measures can also be introduced for digital signatures. A legislative intervention in favour of the evidentiary weight of electronically authenticated documents is considered necessary in Hungary in order to combat the predominant psychological reservations against the electronic media. Further legislation could also result in greater legal clarity. In Italy, the possibility of the misuse of digital signatures is also recognised as a potential problem.

VIII. Legal Information

The ever multiplying applications for electronic technology have made available to the legal systems of the different countries a multitude of revolutionary information possibilities. Their efficacy relies once again on the availability of necessary equipment. If the required materials are lacking, as in Lesotho, there can be no guarantee of access to national legal information.

If the necessary infrastructure is present, then there is the potential to retrieve huge volumes of legal information either by CD-ROM or through the use of a network, normally the Internet. State authorities, principally ministries and courts as well as specialist state institutions and in many countries commercial bodies all constitute sources of information. A first priority is to make the texts of national laws electronically available. In this respect almost all countries have compilations of the currently valid legal texts and subsequent changes made to them. Occasionally, these will already be equipped with hypertext links between the legal texts and further information of relevance. In addition, there are collected volumes of the judgements of the courts. These collections of texts are commonly, as in Korea, available for the highest courts. There, the full text materials are often available over the Internet for both the judiciary and third persons. Further collections of decisions are occasionally to be found in the lower courts whose decisions are available in a decentralised fashion. Additionally, indexes of large libraries, publications by legal institutions as well as academic literature are offered in databases available on CD-ROM or which can be found on the Internet. Thus there are for example in Taiwan and Argentina extensive opportunities to search for legal information. In New Zealand it is estimated that 90% of all legal research could be accomplished electronically. A huge proportion of all legal information is available in electronic format. In addition there are also a number of discussion groups comprising interested persons who conduct a world-wide discussion of particular questions through the medium of the Internet.

It is only to a very limited extent that the huge potential of the available information is actually realised. The reasons have their origin on one hand in the purely practical lack of necessary equipment and training of legal personnel. On the other hand, as in Switzerland, despite the fact that the court libraries regularly have internet connections available, reliance on the known medium of the paper-based information sources in the library is still predominant.

In Australia there has been discussion of the danger of information overload that could result from the ever growing unrestricted access to the collections of judgements. If we consider the possibility of running with the minimum of expenditure a search on the complete decisions of the Australian higher and lower courts with reference to one legal issue, it would result in a huge volume of material. This raises the question, how should the rendering of authoritative literature sources and relevant secondary information be restricted.

As a rule, the information is rendered free of charge or for a minor fee to those involved or specific data is made openly accessible for the internal use of the legal administration.

The possibility of profiting from electronic information sources depends largely on the individual equipment. If, as in the Hungarian lower courts there is only one computer between every 10-15 people, the research possibilities will naturally be somewhat curtailed. Problems could also result from faulty telecommunications systems as is the case in Argentina. The exploitation of commercially available sources will also naturally depend on the budget of the person seeking information.

IX. The Judgement

As a rule, computers with word processing packages are at the disposal of the courts. Once again there is sometimes a lack of the necessary equipment. An example in this context is offered by Greece, where a computer is usually only available if the judge himself provides one personally. In contrast, in most other countries there has been a transfer to computerised word processing. Additional supporting software is also employed to varying extents. The spectrum ranges from the simple creation of identical drafts as occurs in Hungary, through a support function involving data transfer from conventional file administration systems whereby data such as names, addresses etc is re-entered and saved, to systems that offer help in the drafting of legal judgements through the provision of typical text building blocks. Additional systems are coming into operation in Thailand which function in partnership with the judge to generate standard judgements.

Also worthy of a mention is the Austrian system that automatically offers appropriate suggestions for standard form documents and judgements before and after formal data input. Legally specified guidelines are automatically shown. The system undertakes consistency tests, for example concerning competence. The system will also offer appropriate hints for the support of the judge. Complete judgements are centrally drawn up and delivered.

As a rule, the judge himself will have access to any data concerning his case. So long as there is an internal file administration system, he will have the opportunity to work on the available data relative to the equipment available to him either himself or with the help of aides. Once again the necessary infrastructure and the willingness to put it to use are essential. In this respect there are large differences between the technologically advanced countries such as the USA and Austria and other states such as Lesotho that only have more limited means at their disposal. Currently indirect contact between judges and advanced technologies via their assistants is nevertheless predominant.

The judge to whom the necessary equipment is available will generally also have at his disposal calculation packages to aid him in carrying out the calculations that are required during the proceedings. These tend to be standard spreadsheet software, such as that to be found in the Microsoft software package. The Dutch judges are comprehensively equipped in this manner. In addition there is also individual software that makes maintenance calculations easier. For such tasks additional programs are often available. The Austrian system, for example, offers additional aid for standard calculations. However, as the Swiss example demonstrates, the absence of training for personnel often results in the failure to make use of these possibilities. Furthermore, the many-faceted nature of the judicial profession requires certain skills of the judges to recognise when the aids can be introduced. Additional calculation programs simply help in the solution of special problems. Thus in Argentina the cost-calculation program makes it easier to take into account the considerable inflation rate.

The possibility does not generally exist for the parties or their lawyers to participate in the court’s internal calculations processes. In Belgium and America the networks are internal to the legal administration system and are physically separate from those which serve to provide information to third parties. There are predominant reservations concerning free access to these networks due to a fear of security risks.

The handing down of the judgement of the court poses the same questions as have been previously discussed in relation to the submission of documents for the initiation of proceedings. As such only the American and Austrian systems have offered any type of solution.

In contrast, the publication of judgements in collections of decisions has been the subject of intense discussion. There is a general consensus that the cost effective publication possibilities offered by the world wide web should be exploited. For example, the constitutional court in Hungary is planning to make its judgements available on the net.

Problems concerning publication stem primarily from the issue of inadequate data protection. Some legal jurisdictions have particular requirements which are evaded when published in such collections of decisions. Thus for example there is no anonymity of judgement in the publication of the decisions of the European Court of Justice.

Sometimes the focus of the problems of publication on the web concern the technical transfer of the data, as in Belgium. The system must ensure that the decisions are accurately transcribed. In Australia the primary subject of discussion was the problem of uncomplicated use and transfer of information. Directives have been formulated that seek to enable a standardisation. For example, the alterations that inevitably appear when dealing with electronic documents will no longer pose a problem as regards citations, as paragraph numbering of decisions will be introduced.

X. Proceedings involving many parties

Complex litigation involving a large number of parties is in practice a source of considerable problems. These problems can frequently be addressed through the application of advanced technologies.

The Italian example heads in the opposite direction, by realising the enormous effort necessary to deal with complex litigation problems and concluding thereupon the additional effort not being worthwhile. This attitude constitutes very much the exception.

Aside from this, the more complex litigation appears to pave the way for the introduction of advanced technology into the civil procedure. The possibilities of electronic file and case management have been developed in these cases. This is particularly illustrated by the examples of the USA and Australia as well as England and Wales. More complex data management, particularly the often employed extensive file collections creates considerable logistical and capacity problems for the participants of the procedure. By virtue of advanced data processing and file management techniques, considerable improvements in transparency and as a result significantly improved time management could be achieved. The technology developed in this context, such as optical text recognition and the possibility of scanning in huge volumes of documents are also sufficiently well suited for the processing of full text court records, a method tested in New Zealand. The only problems evident in this respect are the demands made on capacity and materials already associated with complex litigation.

XI. The Appeal Process

The observations concerning the lack of necessary equipment and legal issues mentioned in the discussion of the lower instances are all equally applicable to the introduction of advanced electronic aids into the appeal process. In general, however, the equipment available to appeal courts is significantly better than that at the disposal of the lower courts.

The possibility of accessing data compiled in electronic form during the hearing at first instance is seen as for the most part advantageous. The possibility already exists in Switzerland for the upper courts to make use of existing data. Both normal data storage devices and networks serve as the conduits for the transfer of information. Much discussed plans to enable express access to the upper courts must however first solve the technical difficulties of data transfer (Conversion, etc.)

A further point of view under discussion in Switzerland raises the concern that given the inherent weaknesses of human nature, the electronic accessibility of decisions at first instance could have a negative effect on the quality of the re-examination of the legal issues at appeal. There is a recognisable danger that the appeal court could be inclined for labour saving reasons to favour the solution that has been already worked out. On the other hand, the alternative solutions offered by the opposing parties could also be submitted to the appeal court on data storage devices such as disks.

The usual issues of data security and data protection and the assurance of the authenticity of the documents found on the system are of course of equal relevance here.

XII. Electronic registers

In most countries there are registers that indicate real estate proprietary rights and commercial or company based legal relations. In addition Hungary has recently introduced a register of security rights over moveable property that serves to publicise non-possessory security rights. These registers are commonly kept in paper form. Parallel databases are increasingly being established alongside paper based registers, that should progressively take over their functions. The databases established parallel to the conventional methods seek to simplify the process of administration. In some circumstances the transfer to fully electronically managed registration is already complete. In Austria the general register of real estate interests has been fully electronically administered since 1992 and the companies register since 1994. In many cantons of Sweden and a number of lands of Germany the property registers are electronic. The introduction of an electronic commercial register is already well advanced in Switzerland. In Germany the preliminary legislative procedures have been accomplished.

The virtually complete development in Hungary is also worth noting. The databases for the property, companies and securities registers are installed centrally in the notary offices. Access to the databases is accomplished by the notaries by means of network links.

The fundamental problem is that huge volumes of information from the registers currently held in paper format must be transferred and digitised. Occasionally, a mixed approach will be pursued, whereby the fundamental elements of the information will be stored electronically while maps and similar visual sources of information will by incorporated by reference to a file stored in paper form.

Data protection is commonly an issue in the context of electronic registration. Access to the databases is only generally available to public corporations, notaries and such persons involved in the legal process so long as they have a legitimate interest in examining the files. For data protection purposes it is often the case that comprehensive information searches of the entire archive concerning one particular person cannot be undertaken. The necessity to restrict the scope of searches becomes evident when we consider that a similar electronic management of the register of births, marriages and deaths is being considered in the USA.

The guarantee of the authenticity of the data stored poses once again a fundamental question for the electronic management of the register. Digital signature technology is also proposed as a possible solution in this context. Moreover, there are hardware based solutions under consideration for example in Germany, such as the saving of data onto storage devices that can only be written on once.

The question of whether the applications to the administration for entry and deleting of information on the register could be accomplished electronically falls back on the efficacy of a digital signature system. The legislative regulations generally stipulate the use of a written document. The allotment of equal weight to conventional and electronic signatures would once again be required. A strong control on the authenticity of the data in this context is even more important than in contentious litigation.

XIII. Summary and Overview

The individual reports cover a wide range of issues in all areas relevant to court proceedings and the application of advanced technology. The technical possibilities and the training of court personnel define differing and at times very narrow limits that restrict the potential of national attempts at modernisation. The deciding factor is the willingness to move away from entrenched habits and to enable the meaningful assimilation of modern methods. Attempts at modernisation are all too easily caught in a vicious circle between the need to provide a legal framework and the reluctance to translate the latest innovations into legislative proposals. A key problem is the question of the authenticity of the transmitted or saved data. In this context there is often reference to digital signatures to validate the data. In most countries the appropriate legislation has either already been passed or is expected in the near future. The legal infrastructure can be put in place in the coming years that will enable the development of legally trustworthy electronic procedural aids that are above all accepted by those involved in the legal process.

Independent of these problems, considerable developments have occurred in practice. Both in the USA and in Austria the court proceedings are carried out to a significant extent by electronic means. The electronic support systems that significantly ease the burden of court administration and sometimes also the file management are of huge significance. Above all in the context of complex litigation that concerns either a multitude of parties or particularly complex subject matter the application of advanced technological aids has rendered such proceedings once again justiciable. As concerns the security of such systems, the opinion is increasingly held that any security defects present in the use of new electronic systems compare favourably with the existing defects in conventional systems.

All in all, the introduction of advanced technology into legal proceedings must be recognised as an important task. Most countries are nurturing ambitious plans for the future. If perhaps a virtual courtroom is not yet a realistic prospect, we can nevertheless expect profound developments in the coming years.

Herausforderung Informationsgesellschaft: Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren