Are you ready for online courts? An assessment of the readiness to build online courts for small claims in 17 jurisdictions

Although the Covid-19 pandemic seems like a dim and distant past, it has resurfaced persisting questions about access to justice, including struggles faced by micro, small and medium-sized businesses (MSMEs). Often, MSMEs are poorly equipped for legal action, facing unequal bargaining power, enforcement challenges, risks of damaging business relations and time constraints. So, how can governments leverage technology to streamline the debt recovery process for businesses, particularly those more vulnerable and less resourceful when faced with a dispute?

To answer this question, the European Bank for Reconstruction and Development (EBRD) partnered with Dentons law firm and assessed the readiness of 17 EBRD economies to build online courts for small claims. The assessment revealed that the readiness for online courts varies significantly and that, even with good IT infrastructure, many court procedures designed for commercial disputes lacked effectiveness and efficiency when compared to the complexity and value of the dispute.

Assessment methodology

The starting point for the assessment was to define online courts as dispute resolution mechanisms conducted by default online, starting from the submission of the claim and ending with the delivery of the judgment, accessible directly to litigants and their representatives and augmented by services and tools to ease access to justice and litigant participation. Inspired by existing solutions, such as the British Columbia Civil Resolution Tribunal in Canada and the Money Claim Online and Damages Claims Online Pilot in England and Wales, the assessment covered 17 EBRD economies in Central Europe and Baltic States (Estonia and Poland), Central Asia (Kazakhstan, Kyrgyz Republic, Mongolia and Uzbekistan), Eastern Europe and the Caucasus (Armenia, Azerbaijan, Georgia, Moldova and Ukraine), Southeastern Europe (Albania, Bulgaria and Serbia), Southern and Eastern Mediterranean (Morocco and Tunisia) and Türkiye.

The assessment employed a maturity level assessment tool, covering both quantitative and qualitative indicators and sub-indicators grouped into four dimensions:

1. Policies and infrastructure for e-Justice explores IT infrastructure and e-governance systems in place, including the use of digital solutions such as court case management and e-filing systems. Additionally, it assesses the extent to which court stakeholders are engaged in the design, development, implementation and improvement of such solutions.
2. Commercial dispute resolution considers the extent to which EBRD economies streamlined the commercial procedure rules and set up specialised commercial courts, judges, or procedures. The indicators included in this dimension also focus on the use of alternative dispute resolution.
3. Uncontested procedures for enforcing a claim examines the ease of filing and processing of claims under the uncontested procedure. The procedure might be a useful starting point to build an online court as it allows creditors to obtain an enforceable title for claims not contested by the debtor in a speedy and cost-efficient manner, avoiding the cumbersome procedures of traditional litigation.
4. Small claims procedure includes indicators on ease of filing and the availability of meaningful procedural simplifications, such as standardised forms, lower fees and simplified rules on evidence, hearing, and the existence of statutory timelines in contrast to the ordinary contentious cases.

Key findings

The assessment revealed several interesting findings.

Firstly, the assessed economies have good IT infrastructure, internet connectivity, and e-justice policies. However, many IT solutions and services lack user-friendly guidance and user surveys that could be used to continuously improve them, meaning that services are less accessible and their reach to potential users is limited.

Secondly, in many of the economies examined, the specialization of commercial cases (where available) on its own was not sufficient to speed up the resolution of these disputes. In five EBRD economies, for instance, the disposition time of commercial cases was found to be more than 10% longer than the disposition time of general civil cases. The procedures need to be tailored better to the needs of commercial cases; judges and judicial assistants need continuous training; and statistical data should be employed to identify issues and solutions. 

Thirdly, there is awareness about the uncontested claims procedure, but limited opportunity to file claims under the uncontested procedure online and little simplification of the rules on attaching evidence. Similarly, in an overwhelming number of evaluated EBRD economies, once the debtor objects, the litigious procedure is not triggered automatically. This means the claimant must spend more time and effort filing a new lawsuit.

Finally, an analysis of the fourth dimension revealed that small claims procedures are the least developed and underutilised in most countries, Overall, employing general judicial processes for simple claims is disproportionate, slows down the judiciary and does not lead to effective justice.

The broader implications of the assessment are that, regardless of the IT infrastructure in place, there should be more focus on streamlining the dispute resolution procedures. Integrating new technological solutions to resolve commercial disputes is an excellent opportunity to redesign obsolete processes. Of course, the design of such solutions should be centred on the needs of the users, particularly the self-represented litigants. And since needs evolve, the solutions should be fine-tuned and adapted based on feedback from users.

There is no need for extremely sophisticated technology to provide valuable online dispute resolution tools to MSMEs. The experience of Canada’s Civil Resolution Tribunal, which started with a simple interface and a user-oriented team, confirms this. Finally, there is no one-size-fits-all template of an online court. For online solutions to be truly inclusive and effective, they must be carefully developed and implemented to account for each jurisdiction's unique needs, capabilities and levels of development.

What next?

To facilitate the process of designing online courts, the EBRD and Dentons also developed a guide that provides actionable recommendations. Policy makers, legal professionals and academics interested in the topic and considering the development of an online court in their jurisdiction could benefit from exploring the dedicated web page www.ecourts.ebrd.com and test the online tool for assembling a roadmap for an online court.

Amid increasingly complex debates about the use of technology in the justice sector, it remains to be seen whether more jurisdictions consider the needs of the users and undertake meaningful changes to their dispute resolution processes or continue to transfer existing processes to the online medium.

Patricia Zghibarta is a legal consultant in dispute resolution at the Legal Transition Programme, Office of the General Counsel, EBRD.

Veronica Bradautanu is a principal counsel at the Legal Transition Programme, Office of the General Counsel, EBRD.

Jaroslaw Beldowski is a counsel at Dentons Poland.