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21Information for citation:
Branovitskii, K. L., Renz, I. G., Neznamov, Al. V., Neznamov, A. V. & Yarkov, V. V. (2021) Digitalization and Covid-19: Global Trend of the Civil Procedure Development. European and Asian Law Review. 4 (1), 16-22. DOI: 10.34076/27821668_2021_4_1_16.
UDC 347.9
BISAC LAW012000
DOI: 10.34076/27821668_2021_4_1_16
Research Article
DIGITALIZATION AND COVID-19: GLOBAL TREND OF THE CIVIL PROCEDURE DEVELOPMENT
KONSTANTIN L. BRANOVITSKII
Ural State Law University ORCHID ID: 0000-0002-9847-3417 IGOR G. RENZ
Ural State Law University ORCHID ID: 0000-0003-2810-8454
ALEXANDR V. NEZNAMOV
Ural State Law University ORCHID ID: 0000-0003-1305-6209
ANDREY V. NEZNAMOV
Center for Artificial Intelligence Regulation, Sberbank ORCHID ID: 0000-0003-2880-7394
VLADIMIR V. YARKOV
Ural State Law University ORCHID ID: 0000-0003-2644-5940
The widespread development of digital technologies, their relationship with the globalization of the modern world are beyond doubt. The sphere of the civil process is not an exception in this regard. The process of its digitalization should be perceived precisely in the context of globalization and the pandemic that covered the world gave us a demonstration of new attributes of this process. That is why, despite the serious scientific attention to the problems of cross-border jurisdictional interaction and the transformation of the civil process in the conditions of coronavirus restrictions, an exhaustive analysis of these phenomena has not yet been conducted in relation to the digitalization of the civil process. On the basis of the specifics of the subject, the following methods were used in its study: a) the system method, b) the method of comparative law. In the framework of this study, based on the analysis of the achieved level of practical development and doctrinal understanding of digital technologies in the Russian and foreign civil process, an attempt is made to theoretical and practical study of the problems of cross-border interaction of civil jurisdictional systems in the context their widespread digitalization and the coronavirus pandemic. The study has led to the following conclusions: a) the Covid-19 pandemic not only marked, but also accelerated the process of digitalization of the civil process now, both nationally and globally. At the same time, the increasing usage of digital technologies in the civil procedure has led to the new issues that represent structural shifts occurring in the 'classical' civil process under the influence of a new technological basis. b) Digitalization is a global civil procedure development trend, and the Covid-19 pandemic only emphasized it has lack of alternatives. In the context of the dematerialization of civil circulation, the blurring of state borders, and competition of national law enforcement systems,
Copyright© 2021. The Authors. Published by Ural State Law University. This is an open access article distributed under the CC BY-NC 4.0. license http://creativecommons.org//license/by-nc/4.0/
the digitalization of the civil process perhaps is the only possible way to adapt the traditional civil process to the needs of the modern world and preserve its former significance.
Keywords: digital technologies; Covid-19 pandemic; international civil procedure; civil procedure legislation; nonfeasance of justice; legalistic trans-border interactions
The article is prepared and published within the frameworks of the Russian Foundation for Basic Research grant project 'Digital technologies and civil jurisdiction: the image of future civil justice' № 1829-16070.
Introduction
The widespread development of digital technologies, their relationship with the globalization of the modern world are beyond doubt. Even the Covid-19 pandemic, which is seemed to challenge the basic principles of today's 'borderless' world, after all, only changed cross-border cooperation into new forms, using new technologies.
In this regard, the sphere of the civil process is not an exception. The digitalization of this process (both in domestic or transnational aspects) should be perceived, to our mind, precisely in the context of today's globalizing world, with its new features and distinctions clearly visible in light of the widespread coronavirus pandemic.
Yet, it cannot be said that the cross-border cooperation of jurisdictional systems was not a subject of interest to the scientific community before now. On the contrary, during the last few decades this line of research has been viewed as one of the most promising both by Russian (Neshtayeva, 2001; Medvedev, 2003; Fyodorov, 2002) and foreign scientists (Schack, 2006; Kruger, 2008; Grubbs, 2003). However, we believe that not enough attention has been paid to the digital aspects of such cooperation.
Whatever the reasons for this - the 'digital monopoly' responsible for different approaches to digitalization standards for developed and developing countries, the political discord or purely technological differences - it is the cross-border digital cooperation that, perhaps, remains the least developed, from a practical point of view, and the least researched, from a scientific point of view, subject area in the civil process. At the same time, we believe that there are no practical difficulties to limit scientific thought in trying to understand the potential and risks of such cooperation.
The same is true for the 'corona crisis' experience. It is perhaps the largest and most serious challenge faced by the modern Russian (and, probably, not only Russian) law enforcement system, and despite its obvious relevance, this topic is only just starting to be recognized in regard to civil proceedings.
This study, which is aimed at understanding the impact that the pandemic has had on the development of the civil process, and, more specifically, on its digitalization, belongs, of course, to a whole series of similar studies, both Russian (Khalatov, 2020; Spesivov & Titov, 2020) and foreign (Pistor, 2020)1; however, it also complements these studies, since the rapid and extreme nature of changes occurred means that the civil proceedings science has not accumulated enough studies necessary to understand fully the processes taking place in Russian civil law proceedings today.
Thus, studying the transnational and international legal aspects of the civil process' digitalization during this forced 'digital revolution' is certainly an urgent task.
Materials and methods
Based on the nature of the subject being studied and the chosen approach to the problems under consideration, the following methods should be used in this study.
1. The system method makes it possible to consider how the digitalization of civil legal proceedings influences this process, not only individual procedural institutions, but also the existing procedural model and basic provisions of civil proceedings in general.
1 European Judicial Network (28 April 2020) COVID19 Impact on Civil Proceedings - National Measures. European Judicial Network. Available from: https://e-justice.europa.eu/content_impact_of_the_covid19_virus_on_the_justice_field-37147-en. do [Accessed: 13 May 2020]; Bevzenko, R. (23 April 2020) 'Law-Arrhae' against Coronavirus. How the Supreme Court Decisively Took a Dual Position. Vedomosti. Available from: https://www.vedomosti.ru/opinion/ articles/2020/04/23/828847-zakonoreya-protiv-koronavirusa [Accessed: 13 May 2020].
The application of the system method, which suggests consideration of a certain legal phenomenon taken as a whole with internal structure and external relations with other phenomena, is certainly not innovative and original to legal science, either generally or in particular, for the science of civil proceedings.
However, the potential of applying this method to the study of digital technologies in law has not yet been fully revealed. In fact, only recently the affects of new technologies on the structure of civil proceedings, the existing procedural model and basic provisions of civil legal proceedings have begun to interest researchers, and we can confidently say that the scientific community has not yet analysed the entire array of internal and external relations of civil legal proceedings affected by digital technologies.
Thus, the use of the system approach in this study makes it possible, in our opinion, to fully reflect and explain the structural changes in the civil process caused by the coronavirus infection pandemic and the restrictions associated with it.
2. The comparative law method compares theoretical approaches, legal regulations and the implementation and use of digital technologies in foreign systems of justice.
Applying the comparative law method in legal research, of course, cannot be regarded as an absolutely new and original phenomenon. Nevertheless, this field is developing so rapidly (both in Russia and abroad) that almost any comparative legal research, even the survey-type, becomes irrelevant in a very short time. Admittedly, many foreign countries continue to outpace Russia both in theoretical studies and practical implementation of digital technologies in civil legal proceedings. Therefore, the comparative legal method is unlikely to lose its relevance and effectiveness for researchers in this field.
On the other hand, namely (and only) the comparative method is able to substantiate and describe digitalization as a global trend in the development of national and supranational jurisdictional systems, and therefore the use of the approach in this study is not only desirable, but also absolutely necessary.
As material for the study, we used domestic and foreign (mainly English and French-speaking, but also German) doctrines of civil proceedings, as well as Russian and foreign (EAEU countries, France, Germany, Austria, Great Britain, USA) law, legal and the governing acts of some international organizations (International Union of Notaries).
Results
The study resulted in the following main conclusions.
1. The coronavirus pandemic not only accentuated the digitalization trend in the civil process, but, without a doubt, greatly accelerated it. When, due to objectively determined restrictions, traditional methods of administering justice (and, in general, conducting jurisdictional activity) in civil cases have become nearly inaccessible, they have largely been replaced by non-classical, digital methods of interaction between participants in the civil process. The legislature and judiciary had to abandon some of old doubts about the reliability, efficiency and legality of the use of digital technologies.
Indeed, the forced 'digital revolution' has led to some problems, but in general, with due comprehension and configuration reflecting the basic legal provisions digital technologies can become, if not the main, then at least, an alternative technology of administration of justice in civil cases.
On the other hand, the increased use of digital technologies in the civil process has resulted in new issues, some of which (for example, the place of acts regulating the procedure for the use of digitalized civil legal proceedings by participants in the legal system) more conspicuously highlight structural shifts taking place in 'classical' civil proceedings under the influence of new technologies.
2. Digitalization is sure to be the global trend in the development of the civil process, and the Covid-19 pandemic has only emphasized the lack of alternatives to this process. With the continually increasing dematerialization of civil turnover (in the broad sense), blurring of state borders (now already in the digital environment), and persistent competition and complicated practical cooperation between national law enforcement systems, the digitalization of the civil process is nearly the only possible way to adapt traditional civil proceedings to the needs of the contemporary technological world and preserve its significance in the system that regulates social relations. At the same time, further digitalization of the civil process in its cross-border aspect requires solving (and often statement) a number of problems: from political and theoretical to purely technical and practical.
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Discussion
1. Digitalization of civil legal proceedings in Covid-19 conditions
Certainly, the awareness of the impact that the coronavirus pandemic has had on the civil legal proceedings and on law in general is one of the most pressing issues in modern legal science. In this context a whole series of studies have been performed by Russian (Khalatov, 2020; Spesivov & Titov, 2020)2 and foreign scientists32.
However, the rapid and extreme nature of changes occurred, their forced and relatively short-term character have not yet allowed us to fully understand shifts taking place in the civil process as a result of the pandemic. In particular, due to many discussed practical challenges in the domestic system of justice (opportunity to participate in on-line hearings, benefits of the 'My Arbiter' system, etc.), some fundamental aspects of the legal system's activities have been omitted in the extreme situation generated by the 'corona crisis'.
For example, in the science of civil proceedings almost no attention has been allotted to the increasing importance of technical regulation during 'coronavirus regulations' and, in general, to the digitalization of civil legal proceedings.
Yet, already in 2011, when the first Temporary procedure for submitting documents to arbitration courts in electronic form was adopted, it became clear that this, at first glance, organizational and technical document contains, if not new rules of law, then at least some additional rules (and sometimes restrictions) for performing procedural actions, which did not really correspond to the organizational and technical status of this document.
Since then, new rules of justice administration during the coronavirus pandemic have been stated by the joint resolution of the Presidium of the Supreme Court and the Presidium of the Council of Judges of Russian Federation dated 29 April 2020. Moreover, a number of provisions contained in this act (e.g., clause 5) at least complement provisions of the procedural law (Art. 153.1 of the Code of Civil Procedure of the Russian Federation) with new, previously missing content; e.g., the opportunity for conducting on-line court hearings. Until now, this procedural form, in fact, has been regulated only by the above-mentioned resolution and the instruction posted in the 'My Arbiter' system, which, as far as can be understood, does not have any official status at all, although presumably the corresponding changes in procedural law will come into force on the 1st January 2022 (the draft Federal Law No. 1144921-7 'On amendments to a number of legislative acts of the Russian Federation in connection with regulation of remote participation in judicial proceedings').
Thus, one of the consequences of the civil process digitalization has already resulted in a structural change in civil legal proceeding legislation in terms of increasing proportion of technical and organizational acts in it. And, as time goes by, this trend will only intensify, as can be confirmed by the following considerations.
As digital technologies transform from just technical devices used from time to time in legal proceedings to a whole new technology for these proceedings and the independent way of conducting procedural activities (as when conducting on-line court hearings), rules for how participants interact during court proceedings equipped with such technologies acquire their special meaning. When cooperation via digital technologies becomes, if not the main, at least a significant way of conducting procedural activities, then by regulating the rules for participant interaction in court proceedings with such objects (technologies), we, in fact, indirectly regulate the procedural interaction itself; in other words, we are encroaching upon the subject of civil procedural law regulation. This means that with the transition of civil legal proceedings to a new (or perhaps, alternative) technological basis, the role of technical and organizational documents in regulating civil proceedings will only increase.
Another aspect, in particular, is the absence of the 'omission of justice' concept at the legislative and doctrinal level.
2 Bevzenko, R. (23 April 2020) 'Law-Arrhae' against Coronavirus. How the Supreme Court Decisively Took a Dual Position. Vedomosti. Available from: https://www.vedomosti.ru/opinion/ articles/2020/04/23/828847-zakonoreya-protiv-koronavirusa [Accessed: 13 May 2020].
3 European Judicial Network (28 April 2020) COVID19 Impact on Civil Proceedings - National Measures. European Judicial Network. Available from: https://e-justice.europa.eu/content_impact_of_the_covid19_virus_on_the_justice_field-37147-en.do [Accessed: 13 May 2020].
Such regulation is necessary to guarantee rights of participants in court proceedings, who, in an emergency situation, are not able to show up in court personally, or in a situation, where the court itself cannot administer justice, must clearly understand the procedural consequences of such 'omission' (for example, mandatory stay of trial, suspension of procedural deadlines, etc.). The proposed 'point' solutions for procedural issues arising during the COVID-19 pandemic proposed by the Supreme Court of the Russian Federation (see Reviews No. 1, 2 on certain issues of judicial practice related to the application of legislation and measures to counter the spread of the new coronavirus infection (COVID-19) in the Russian Federation) cannot be considered sufficient to fill the identified gap, since they are largely focused on non-recurrent 'covid-oriented' law enforcement, and in addition, they are internally contradictory in many respects.
In this regard, it seems to make sense to consider the experience of foreign systems of justice in regulating similar situations.
Thus, as per § 161 of the Austrian Code of Civil Proceedings, § 245 of the German Code of Civil Proceedings, if the activity of the court is ceased due to a war or other event (these include natural disasters, epidemics, revolutions, terrorist acts), legal proceedings are suspended for the duration of this event. As per § 247 of the German Code of Civil Proceedings, if any party is no more able to communicate with the court conducting the proceedings due to the relevant resolution of authorities, military actions or other circumstances, the court may, also on its own initiative, adjourn the trial until the relevant obstacle is removed. The procedural doctrine emphasizes that the intent of such regulation is to protect interests of the parties to the proceedings41. The parties should be protected from the adverse consequences of ceasing / impossibility of court.
At the same time, it should be recognized that resolving such situations only by legislative regulation can hardly be considered sufficient to ensure interests of the parties to the proceedings. Much more important is having an unambiguous approach to the procedural response to emergencies, such as COVID-19, within the relevant doctrine or judicial practice. In other words, in case of emergencies, the parties of proceedings must clearly understand what procedural consequences of 'non-working days' and 'quarantine' might be, or what may happen in situations when citizens are prohibited from leaving their place of residence / stay, in terms of approaching procedural deadlines.
The projection of the experience of foreign law enforcement systems in overcoming crisis situations onto the domestic reality indicates, among other things, that the digitalization of civil legal proceedings as well as the pandemic, relate to global trends.
2. Digitalization as a global tendency in civil process development
The study of foreign experience in implementing digital technologies in the civil process and procedures clearly indicates that digitalization is the global trend in the civil (in general) process. Such digitalization is not just local and in the form of individual experiments, but is almost ubiquitous: from civil legal proceedings to notaries (Yarkov, 2020; Branovitskii, 2018) not only in developed, but also in developing countries (Lazarev, 2021: 249-267, 306-321), in technologies from civil-law case management to the blockchain and artificial intelligence systems (Lazarev, 2021; Neznamov & Neznamov, 2020).
Moreover, the Co vid-19 pandemic, which on a global scale has further exacerbated the processes of dematerialization of civil turnover and blurring (now digital) of state borders, has given almost no alternative but to digitalize the civil process, i.e. making it the only way for the civil process to retain its importance in the modern world as the effective and authoritative method for resolving disputes arising in society.
At the same time, the cross-border cooperation of digitalized national jurisdictional systems still remains, perhaps, the least developed from the practical point of view and the least researched from the scientific point of view subject area in the framework of the civil process. There is a whole set of reasons for this: from political to purely technical, but among them there are those that are in the 'area of responsibility' of legal science.
Thus, based on an analysis of the situation in regulating cross-border civil law disputes, we see a certain regulatory 'vacuum' existing in this sphere.
4 C. H. Beck (2016) Münchener Kommentar zur ZPO [The Munich Commentary to the Civil Procedure]. 5th ed., Munich, C. H. Beck.
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At the present stage of development, states 'carried away' by the improvement and development of national legal systems in the field of justice, seeking to increase its competitiveness in the world market ('in pursuit of the forum'), pushed the issues of digital cross-border cooperation to the background. It is not difficult to find reasons for this situation. Firstly, it is the existing 'conventional regulation base' that ensures accessibility of classical understanding of the twentieth century. Secondly, the existing difference in the digitalization of justice between individual states does not make it possible to choose the approach that suits everyone.
At the same time, the practical difficulties of implementation should not limit the procedural doctrine in its search for answers to the contemporary aspects of developing legal proceedings. The principle of accessibility and efficiency of justice, which in the understanding of the 'right to be heard by the court' is recognized by almost all modern national legal systems, could be used as the multifunctional procedural principle capable of justifying the need for cross-border digital cooperation.
Practically the same can be said about other, non-judicial, cross-border legally relevant types of cooperation; for example, about notary institutions.
Accordingly, if certain conditions are met, there is neither great technical difficulty nor serious legal obstacles to performing certain cross-border notarial procedures (for example, certifying the documents in electronic form and on paper are equal) using digital technologies. However, despite the fact that under current conditions there is a demand for such actions, some shortcomings of the current legislation and above all - absence of this problem statement at the broad international level (Renz & Filippova, 2020) - makes it so far impossible to fully implement a legal remedy in the notarial system. At the same time, it seems that at the present stage, Russian notaries are ready to consider, along with colleagues from abroad, expanding the cross-border cooperation zone and developing specific legal, organizational and technical conditions for performing electronic notarial actions and electronic document exchange between notaries from different countries.
Conclusion
The study conducted not only reconfirms the aforementioned statements about the relevance and potential of further researching the digitalization of the civil law process on a global scale, but also assumes that, despite the theoretical, application and technical challenges, modern Russian and foreign legal science has all the necessary developments to substantiate this process thoroughly from the theoretical and practical sides.
Since both objectively conditioned and spontaneous processes occurring in the world make the digitalization of the civil process the inevitable and practically uncontested trend in its development, we believe that there are no practical obstacles to the scientific understanding of the problems and prospects for further advances in this area of the civil process.
References
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Information about the authors
Konstantin L. Branovitskii - Doctor of Juridical Sciences, Full Professor of the Civil Procedure Department, Ural State Law University, Yekaterinburg, Russia (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
Igor G. Renz - Doctor of Juridical Sciences, Full Professor of the Civil Procedure Department, Ural State Law University, Yekaterinburg, Russia (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
Alexandr V. Neznamov - Candidate of Juridical Sciences, Associate Professor of the Civil Procedure Department, Ural State Law University, Yekaterinburg, Russia (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
Andrey V. Neznamov - Candidate of Juridical Sciences, Managing Director of the Center for Artificial Intelligence Regulation of Sberbank (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
Vladimir V. Yarkov - Doctor of Juridical Sciences, Honored Worker of Science of the Russian Federation, Full Professor, Head of the Civil Procedure Department, Ural State Law University, Yekaterinburg, Russia (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
© K. L. Branovitskii, 2021 © I. G. Renz, 2021 © Al. V. Neznamov, 2021 © An. V. Neznamov, 2021 © V. V. Yarkov, 2021
Date of Paper Receipt: April 28, 2021
Date of Paper Approval: May 31, 2021
Date of Paper Acceptance for Publishing: July 26, 2021
