Reports from 23 countries across the globe

The unforeseen Covid-19 pandemic has propelled unprecedented transformations in civil proceedings. Numerous countries across the globe have faced and continue to face the question of how to enable courts to handle civil cases despite restrictions on the operation of societal functions. Many pre-pandemic practices, rules, and standards are clearly inappropriate for the new reality.

To enable us to study the impact of the pandemic on civil justice systems, we invited proceduralists from countries across the globe to provide insights into the developments in their own country. This has resulted in a book with contributions from 23 countries, spanning five continents. [1] These contributions shed light on civil justice during the pandemic, and to some extent the implications for post-pandemic dispute resolution practices. [2]

Although the pre-pandemic civil procedural rules and practices varied among the countries studied and the pandemic and the measures taken to contain the virus also differ, we have been able to identify some common issues that were raised in the responses to the pandemic. Since the outbreak of the pandemic, the ‘R’ (the infection ratio) has become infamous. In some respects that appears to be the case in this study as well, albeit using different R’s: resilience, resistance and reorientation.

Technological innovations: Resilience and resistance

Resilience through the digital leap

The most prominent element among the many countries studied is rather obvious: the use of technology that has engendered resilience. Civil courts around the world have coped with the pandemic mainly by digitising paperwork, severely restricting the presence of parties and witnesses and switching to remote hearings. Under normal circumstances, it would have taken decades to implement the infrastructure and novel work processes for this manifest and pervasive leap towards digitisation. The pandemic has unleashed an extraordinary flow of creativity and innovations among courts, judges and lawyers.

Practically all countries in the study were in the process of introducing digital technology to their courts before the pandemic and had foreseen some remote and hybrid hearings. Still, far too often, the pre-pandemic efforts to digitise courts had proved ineffective or had been deployed only after significant delay and budget overruns. Soon after the Covid-19 outbreak, courts started experimenting with technological solutions to be able to operate as normally as possible. Judiciaries that had implemented electronic case filing, case management, remote communication or other types of technology before the pandemic had a tangible advantage vis-à-vis those judiciaries that had taken fewer such steps. For some countries, it took a pandemic to force their courts to finally utilise technology that had already been installed.

Resistance to digitisation

Despite courts embracing new technology, resistance to remote hearings is still widespread and multifaceted. The absence of appropriate technology is far from the only challenge. Rigid procedural rules and practices can be relevant in this regard, such as in Slovenia, as well as the mindset of lawyers and judges. Several authors described how lawyers and judges in their countries were sceptical about the veracity of digital documents.

New issues in digital courts

Digitisation raises many issues, such as: Is something essential lost if remote hearings mean that non-verbal language is reduced? Does remote attendance create additional distance between the court and the person attending remotely? When is it appropriate to replace a hearing with written proceedings? And, above all, how do we ensure equal access to justice if many citizens do not have access to high-speed internet and appropriate devices?

The rules of civil procedure: Usual rules or pandemic rules?

Courts have largely been able to operate during the outbreak according to regular rules of civil procedure. Some countries had technology-neutral rules or rules regarding disruptions to communications and rules to introduce pilot schemes that rendered courts indispensable leeway in adapting to lockdowns. Japanese courts, for example, had already prepared business contingency plans in 2016 to enable them to continue functioning during a pandemic. Across the countries studied, emergency legislation enacted in the first months of the pandemic was remarkably limited, and many of those rules have already been repealed. In Australia, the replacement of a jury with a single judge to enable courts to continue hearing cases turned out to be a viable option as well. In some countries, such as Brazil, courts have assumed a new role in actively designing the ‘emergency laws of the pandemic’.

The role of courts in dealing with the pandemic

Courts can also play a pivotal role in contributing to an adequate response to the pandemic. Singapore, for example, enacted a special procedure for obtaining temporary relief in disputes arising from non-performance of a contractual obligation during the pandemic. Courts have also faced a surge in cases in which restrictions such as curfews were challenged and claims were made for compensation due to measures. Courts in several countries have witnessed a drop in certain types of cases, but the number of incoming cases is expected to rise in 2021.

Reorientation: Charting a new route for civil justice?

Civil justice without hearings

While some courts have exploited the opportunities from new technologies by switching to remote hearings, courts in other countries have resorted to hearings by camera, which are conducted without public scrutiny, or to increased use of written elements. In some countries, such as France and Poland, the change towards the increased use of written proceedings had already been initiated before the pandemic. There is reason to believe that we are witnessing a shift towards more written elements in civil proceedings.

Shift towards alternative dispute resolution

In some countries, the pandemic has propelled the use of alternative dispute resolution, particularly mediation and other mechanisms that facilitate consensual outcome. Simplified arbitration proceedings have been introduced to make arbitration a more accessible and attractive alternative to litigation, and new rules have been introduced to enable parties to switch from litigation to arbitration.

Post-pandemic civil justice

Although the pandemic is not yet over at the time of writing, reorientation is hopefully around the corner. It is too soon to tell what the ‘new normal’ will be like for civil courts, but it would be sensible not to ‘waste the crisis’. Collaborative research to guide courts in making a successful transition towards post-pandemic times seems advisable.

Civil Courts Coping with Covid-19 (Bart Krans & Anna Nylund, eds., 217 pages) is published by Eleven international publishing and is available online (open access).

[1]The authors in this book are, in alphabetical order by country David Bamford (Australia), Piet Taelman (Belgium), Fredie Didier Jr., Ravi Peixoto, Hermes Zaneti Jr. (Brazil), Catherine Piché (Canada), Yulin Fu (China), Alan Uzelac (Croatia), Clement Salung Petersen (Denmark), John Sorabji (England and Wales), Frédérique Ferrand (France), Wolfgang Hau (Germany), Elisabetta Silvestri (Italy), Shusuke Kakiuchi (Japan), Bart Krans (Netherlands), Anna Nylund (Norway), Vigita Vėbraitė (Lithuania), Christian Delgado Suárez (Peru), Kuan-Ling Shen (Taiwain), Jeffrey Pinsler (Singapore), Aleš Galič (Slovenia), Laura Ervo (Sweden), Piotr Rylski (Poland), Santiago Pereira Campos (Uruguay), and Richard Marcus (USA).

[2] In April 2020 we published a study with the initial reactions of 15 civil justice systems. After the positive response to that report, we decided to extend the study, including the number of countries. In view of the ongoing pandemic, this also gave us the opportunity to address other and more in-depth questions that have arisen in connection with civil justice in covid times.