Die Digitalisierung des Zivilverfahrensrechts ist eine Thematik, die Wissenschaft und Praxis seit vielen Jahren begleitet und die durch die Corona-Pandemie erheblich an Schwung gewonnen hat. Die Vorteile digitaler Verfahren liegen auf der Hand. Nicht nur lassen sich Gerichtsverhandlungen mit Blick auf die Anforderungen des Gesundheitsschutzes sicherer durchführen als in Präsenz, auch sparen digitale Verfahren sehr viel Geld und Zeit – und sie können u.U. auch dazu beitragen, den Zugang zum Recht zu erleichtern.
Die Göttinger Kolloquien zur Digitalisierung des Zivilverfahrensrechts (#freitagskolloquien) wollen einen Beitrag zur laufenden Reformdiskussion leisten. Dabei werden wir nicht nur die nationale Perspektive einnehmen, sondern auch grenzüberschreitende Zivilverfahren betrachten.
Am 7. November 2023 fand das #freitagskolloquium am Dienstag zum Thema “Herausforderungen der Prozessrechtsdigitalisierung aus rechtsvergleichender Perspektive” mit Prof. Dr. Anna Nylund, Prof. Dr. Matthias Neumayr, Prof. Dr. Bart Krans und Prof. Dr. Thomas Garber statt.
So ladies and gentlemen um I’m very happy to be able to welcome you uh to our first colloquium in this winter term 20 3 2024 and um I’m really happy that we’re as you can realize from my the language I’m speaking uh it’s getting International today so uh I’m really
Happy uh to welcome um learned friends from the civil procedure um from um from European countries um first foremost an Marland and Tomas Gava Mr Noire and of course um B from the Netherlands I’m really happy that we um could manage to arrange um such a hybrid conference
Um today and um I’m really looking forward to um the presentations we’ll have in uh the next um one and a half hours in the discussions so today we will um touch about talk about uh the challenges we have um concerning the digitalization of procedural law from a comparative law perspective and we
Decided to take a European view on The Meta not a European Union view but a European view uh Europe View and there might be an additional event uh in the future which will be dealing with um external third country perspective and um today we are happy to
Welcome um lineup I will present to you we have the first presentation which is presented by Anna nyum she’s the professor of civil procedure law uh at the University of barain she’s um chair of the Nordic Association of procedural law so she knows what she’s talking
About and um she has uh edited recently edited the book on civil courts coping with coid it’s has been a while since the book has been edited but um um if you are interested in how uh different jurisdiction touch about touch on coid 19 um situation then you will have the
Possibility um to access the book online Open Access so this is um a very nice service um we can have there so Anan alland will present some general thoughts U and prepare the floor for our um country R views on specific um measures that are um undertaken in um
The Netherlands and in Austria um considering digitalization of civil procedure and will talk about how to approach um civil digitalization of civil procedure and we’re really interested in learning a bit more from your perspective the second presentation um will be held um by um our friends
From Austria which is Tomas Garba who is a professor for civil procedure um at um car Franson University in grat and um a specialist in the field as well and he will join up with um Professor noyer who used to be the vice president of the um Austrian Supreme Court and also
Part-time being a professor at the University of salsburg he unfortunately he tells us how to uh retire from this position due to age age restrictions and he now is a full professor University of Lin and uh he’s um well equipped to present us with some um developments from Austria the final presentation will
Be held by B gr he’s a professor of civil procedur private and procedural law at the University of Leiden um we have met up a couple of times uh especially in Japan which was quite interesting excellent presentation there and uh um we decided we’ll um continue
To meet up and uh we are quite lucky to welcome you B here in G so you will present some thoughts on current developments under Dutch law so um we’re really looking forward to the presentations and uh as always um I have to mention that um this the presentation
The whole meeting is recorded and will be available on YouTube um afterwards on my YouTube channel the Civil Rights Canal you can download it there and um re access the discussion that is going on and um the meeting is also streamed live uh on YouTube platform my YouTube
Channel so if you want to take part in this discussion um there are several ways to do that first of all if you’re here in presence you will be have will have the easiest way you just raise your hand and signal that you want to comment
Or ask a question and I will note that down on my physical list if you’re um taking part I just let somebody else into the room just not everybody outside um you will also if you if you’re joining the YouTube um room then you uh YouTube stream then you only have the
Possibility to use the top chat to comment on the presentations and to take part in the discussion I will uh monitor the YouTube chat and uh will um address your questions in the discussion here um if it fits and uh if you’re a uh taking part in the zoom conference then you
Know how to partake uh in the meeting it’s nothing new you use the yellow hand function to uh uh to uh to signal that you’re having a comment and or you use the chat to uh address your topics so I’m really happy that we can start we’ll start right away with the presentation
Of Anna Anna nland the floor is yours thank you yeah to present just um just a brief note for the audience in this room we have to remain strictly silent because on several um places here on the table there are microphones and if you chat we will
Hear so Anna the floor is your thank you um I hope you can all hear me well and it’s really a pleasure to be invited here to speak today on the um digitalization of civil proceedings um and I’m I’m going to give you some examples from Norwegian law
Because I thought that even if it’s more General it’s always interesting to hear something on on on and what is the same in Norway as I I think after B and I did this research on Co and civil courts and Court proceedings we can all say that uh
Many all almost all uh Western and and even countries across the world had it systems but they were very much oldfashioned in uh most countries and and in This Way co 19 was a catalyst for producing digitization of Cil proceedings and a leap into the digital
World what we don’t know if uh to the extent to which these changes have actually been there are still there now and to what extent people have roll back into the bad old habits or some of them for maybe good old habits I want to make
A few points um and and I’m going to talk about technology in society uh about distorting discussions that get into way of discussing uh technology and also uh the path dependency of technological discussions and then um I’m sorry I will sound like the Jinx but I will talk about crisis preparedness
Because I really think this is an important topic so technology permeates our societies and we have technology in use everywhere and uh the Italian Information Technology expert uh stefanelli he had said actually Ai and artificial intelligence is a way uh to obscure what this is all about and it
Renders the technology very OPAC so he uh and suggest this other term systematic approaches to learning algorithm and machine somebody push the button maybe maybe be me no he um so Salam then instead of AI makes us really think differently about uh many things that have to do with this
And and I’ll just give you one example for instance if you can understand how chck GPT works this following example makes really sense to you my son was watching Formula One with um in English with translations to Norwegian and you know uh Louis Hamilton the famous Formula One driver his um abbreviation
Is ham and uh AI then turns ham into sh and I know this works in German as well and then Pierre G uh gas is benene in noran and if you cannot know how chat gbt for instance works then this makes very much sense to you and you can
Understand that this is also very difficult to remedy because this is how it is it doesn’t understand anything it’s just mathematical calculations but two judges understand this are our civil proceedings shaped in a way that understand what this means so for instance if you go to the bank and
The bank tells you you cannot have a Lo and they have uh some kind of machine learning that points you out as a a non eligible customer uh how can you then if think that this uh system that they have is biased does the judge understand what
Kind of evidence you will need to prove this does the judge understand how how this kind of systems work or another example um I was driving uh going about maybe 80 kilm per hour and there was um somebody on the bike and this was the backpack of bike bike driver and my uh
Car then interpreted this as an another car and suddenly started to emergency Break Even though there was plenty of rooms and I can room to to overpass this cyclist and um and do it safely and I could see that so do judge from standing and for instance in countries like Norway that
Have very generous rules for access to evidence so we have disclosure rules would a judge allow you access to the relevant evidence would the judge when the judge sees the evidence understand when and who is liable and of course here here I I I don’t think this changes too much
Even with uh substantive legislation because there will still be issues around how this specific system works um and I think our civil procedural rules are not fit for this kinds of of vity that’s already there and another way of thinking about this is also uh all the number of documents
That we produce every day and how do you make access to these documents in a way that doesn’t allow for too many fishing Expedition that protect for instance secret of things so even this sort of handling the world as it is today I think it’s difficult for procedure rules as they
Are so uh then going on to how sort of distorted thinking is that many of the discussions become polluted with ideas that have nothing to do with technology and for instance in Norway we have an appet system where the appet proced in are basically rehearing the case and you will retake all the
Evidence and believe me there’s lots of evidence in Norway uh that’s a joke saying that what a hearing that takes one hour in Germany will take one day in Norway and and I think it might be exaggerated but it gives you an idea and uh we already more than 20 30
Years ago there was saying that we need uh devices to record evidence in courtrooms and and 30 years on we still don’t have this in place this was put in place in Sweden in the 80s and and early ’90s so this is really not rocket science but this discussion becomes
Distorted recording the evidence just to have it so you can prove what the witness says if there’s allegations the witness says something else in appet proceedings or if the witness cannot participate in appet proceedings then becomes distorted with this idea that maybe we should reuse this the same
Money so so that the role of an apple judge would be to listen or watch these tapes from lower courts and of course you cannot find an apple a judge who wants to listen and watch Pro recorded proceedings and then uh call the witness again because you might have an
Additional question and in nor you can have additional new Witnesses uh so there will be no time sings whatsoever uh if you use the recordings but these uh two discussion become and mesed so you cannot then discuss recordings as a way of securing evidence without then um this uh distorting
Discussion to have to do with a need to reform appal proceedings and the reform and appal proceedings is then one that has to do with how do you imagine the way the best way of getting the correct judgment and Justice so so basic ideas about the judicial
System and and this bries of them um need to think that what we need to think about technology is also not just what is this technology good for but also to think that if this technology is the answer what is then the problem is going to uh solve and what are the problems
That it might create and what are the problems that it won’t resolve um so we also have other examples and one is the uncritical adoption of uh new technology for instance when we think about Witnesses in Norway uh we have heard Witnesses uh on remotely on telephone
For really a lot of time and particularly expert Witnesses and what happens uh then is that now we can also add um Vie seeing the witness but the problem is that psychological research tells us that it’s easier to judge The credibility of a witness if you can just here the was
If you can’t see them and when we have these Witnesses remotely we don’t know where camera angle lightning background distance from camera uh and so forth what they do with our perception of this witness and we don’t know whether this is the same for everybody or might this
Be something that is not distorting when we have he an expert but might be if you hear somebody who we uh generally uh would assign lower credibility to and um also we don’t know yet uh as far as I know um how this technological distance whether it also creates a
Psychological distance and whether this is the same again in all types of proceedings and also we don’t really understand how uh this presence or distance can be an advantage for instance if there’s fear an animosity in the room it could be an advantage we know this from Family
Mediation uh that family mediators in high qu families with violence they many of them say that they perceive distance or remote mediation as a better alternative but this might be very different in a case let’s say business partners have known each other for a long time and for whom being present in
The same room might actually be very beneficial and and might uh then lead them to settle and also we don’t know whether this distance uh does it do anything with the feeling of justice and and we don’t know whether this is the same across cultures I know some of you might
Have seen pictures from Chinese online cours these small anatar uh that look like cartoon figures uh would a European person for instance I think that many Norwegians would find a very odd uh way of having a court and would probably then prefer written procceedings but we don’t know we haven’t done research and
We don’t know whether this is the same in a George case in or or contract case family case and also whether the parties if they know which from earlier on or not so these are things that we need sort of input from psychological research when designing legal rules and these
Systems I would also um want to point out that um we are very much part dependent and Technology dependent our current rules of civil procedure were founded uh at in the late 1900s and early uh 20th century it was a time when we could suddenly travel fairly long distances by
Train um and therefore it was natural uh that we should go from written proceeding so you could just send a letter instead of traveling a very burdensome way to some other place um and then um we also have proceedings that are actually for pen paper and trip
And these ideas still seem to guide the way we devise our case management systems and the way we structure proceedings so for instance um the old fashioned Norwegian case management system We have basically paperless quotes it doesn’t allow uh putting in um a table where you could have in a
Complex case so all the claims and for that are claimed and that you could then update so what happens then is that these numbers they are available in uh documents they come new version of these documents if the parties change amend uh their claims or if they settle something
Or withdraw a claim and so forth and this all becomes a mess but the system doesn’t allow for this partly because it’s old fashioned technology uh from technology B but also because this is not the way we have conducted our civil proceedings we have always given a new document but not updated
Documents and the same has to do with uh the way we fashion and structure appearance we think appearance is quite some burn some because they require presence So Physical presence that’s simultaneous for both parties so synchronous and and very uh temporal and and tied to specific location and and therefore we fancy uh
This idea of concentration in hearings but technology allows us to uh go further from there structure proceedings and this is particularly could be an advantage if you have self represented parties or partially self represented parties which is uh the case sometimes in Norway because then you could do it
Incrementally and actually going away from this concentration idea could be also uh today I mean you may have access to teams for instance where you can coauthor on a document and it’s quite normal but we still haven’t thought that our civil proceedings should be that concretely cooperated between the
Parties and and we haven’t transferred what is already out there and ways of working they already using in other domains civil procedure and this is also something we should think about not only how these age old ideas shape current rules but also how there are new ways of
Working and how we can could and should incorporate those into civil procedure laws um and then um there’s also some other functions that we don’t use yet and that has to do with for instance um if I comment on other people’s writings I put in comments in word but I
Would like to see a a judge starting to work that way that you would actually be able to pinpoint and you could also ask the other party to pinpoint exactly rather than to write their own paper and bu in their own submissions and then they start to talk about each other then
You could uh build in these kind of functions and this would also probably be very helpful for self-representative parties and all these things are possible some of them are not possible within the systems that we have and some of them are not uh so technological systems that we have some of them are
Not possible because the way we think and some of them would actually be possible uh in with new technology but our thinking limits and then of course we need to know whether these are good or bad whether we should incorporate them or or whether we should not do that whether
There could then actually help us or not help us to have more experient and more accessible and even better results in our proceedings so we need to see what is the potential but also what kind of principles would we like our proceedings to rely on then moving um to my final
Point and this is the crisis preparedness and I know I’m I’m sort of feeling like I’m becoming the Jinx here uh the one who brings the bad news but the thing is that if you look at the world around us we know that technology is vulnerable we know uh that there are
Power outages hacking jamming uh internet cables um that are are could be damaged in some way but we also know flooding heat waves and even electromagnetic solar impulses uh yesterday as another light across all Norway but they could actually also destroy um our infrastructure and people who work on
Aircraft on vessel and people uh in hospitals they practice every day or regularly for um for instance for cardiac arrests what do you do then you can’t start to look in the manual and I would like to see judges practicing this I would like to see a group of judges and lawyers who
Set up from Mo day regular day at court at 6:30 a.m. they got this message you have a power outage and you cannot cancel the case you can postpone it by two hour the hearing and to see then they would have to figure out how to run
The court that one day or another group at another Court you have a the T would be you have no internet how do you manage to get through day and it would all they would also be told there will be no internet you have to imagine yourself in a
Situation there will be no internet for the next two weeks and the power outage you have two hours just to charge your phone every day how do you proceed now and I think if you would Harvest uh the ways uh their Solutions or the way or thinking that they find
During the single day I think we would be able to create much more prepared systems that would be much better and safer for the use of technology so I think uh we should embrace technology very much but do it very critically and to think which part of this should we
Corate and how do we do it in a way that suits different kind of cases because there might not be a One S F all after all thank you thank you very much Anna for the the many thoughts on how how to approach digitalization there were couple of
Issues um we can touch on or I will I’m keen on touching on later in discussion um we always have the discussion um at the end of the of the presentations uh to to focus um the discussion on um one spot in the online meeting so if you
Have questions um on Anna’s presentation so please note them down and don’t get them so we start right away with um Austrian uh couple presenting presenting um on the new developments in Austria on digitalization I think M profess no will start so the slides are there the okay thank you dear colleagues uh
Thank you very much for the honorable invitation to contribute to the Guan colloquium unfortunately both thas and I are currently suffering from health problems I myself are currently in the hospital uh you can see it probably from my background now to my topic uh the Dig digitization of Austrian civil procedure
More seen from a somehow historic perspective I’ll give you some examples Oster has been a Pioneer in the use of modern Technologies in civil proceedings he understood in a broad sense in the early 1970s preparations began to transfer to manually maintained uh paper based land register at the district courts to an
Electronic database system uh the actual transition started in 1980 and was completed in 1992 the transition of the commercial register which is also kept by courts in Austria uh inter electronic database took place from 1991 to 1994 and since 2006 uh the deed collections for the land register and the commercial
Register have been maintained electronically uh this electronic database systems do not only facilitate uh data retrieval documents uh can now be accessed via the internet but they also contribute significantly to the Austin state budget the self- financing rate of qus and alsoo is around 100% And
The main sources of income are from Land register and commercial register inquiries uh the transition of the land register had a positive side effect on further development it connected all courts in Austria via data lines this was relatively easy to achieve as all ordinary courts in Austria are feral
Courts the term ordinary courts is found in the Austrian Constitution and distinguishes the courts that essentially deal with civil and criminal law uh from the administrative courts uh unlike in uh Germany or Switzerland Austin Austria’s ordinary Judiciary doesn’t have Courts at the state or contor level the early implementation of quote toot
Electronic communication via secure data lines significantly facilitated electronic case files and electronic legal correspondence and I will deal with this special topic of electronic legal correspondence briefly a little later uh a small detail to note in this context since the N since the 2004 Amendment of the civil procedure
Code the possibility of conducting a video conference instead of a witness examination by a requested judge has been provided in court proceedings specifically article 277 of the civil procedure code now States I quote that the court must conduct an immediate examination using using te technical facilities for the transmission of words and images
According to the technical possibilities instead of an examination by a requested judge a video conferencing quickly gained uh practical significance in also and civil proceding proceedings but only uh instead of a um request the judge um by 2011 all courts were equipped with the necessary facilities and here are a
Couple of Statistics from before the onset of the coid 19 pandemics in 2019 approximately 4,500 video conferences were conducted Nationwide with about 11% of them being cross border uh it is important to note that the person being examined does not join the proceedings from home through video
Instead he or she is required to go to the nearest District Court from where he or she is connected an independent room reservation system was developed allowing the court conducting the hearing to reserve and block the video conference room at the district court where the witness is being examined a
Prevalent view among the Judiciary is that the person being examined should come to a court rather than having the witness examination take place from the comfort of his to her home now turning to the electronic to electronic legal correspondence in in 1990 uh this in German called electron
For care was introduced as a means of communication between the courts and party Representatives alongside traditional paper submissions also was the first country in the world to establish electronic legal correspondence uh this electronic legal cor respondence is particularly useful for the direct transfer of data in the payment order procedure which plays a
Major role in austan civil proceedings since 1999 service of documents from the courts to the party Representatives has also been carried out by electronic legal correspondence this measure has saved the Judiciary substantial postage costs with the Federal Ministry of Justice estimating annual Savings of approxim imately 12 million
Euros the success of electronic legal correspondence is primarily due to the mandatory participation for certain professional professional groups starting with party Representatives as atoris and public notaries and later extending to include Banks insurance companies social security institutions experts Etc uh although the aspect I’m going to mention
Now is not directly related to the ordinary Judiciary but rather to the administration it is worth mentioning because it is it significantly simplifies the work of the courts the central residence register uh zmr uh Thomas I think it’s the side one yes um established in 200 two it serves
As the primary administrative register and as a foundation for many public administrative Administration task as elections for instance data is updated promptly by the registration authorities and made immediately accessible in the setr for inquiries this is vital for the work of Courts as all authorities as well as Banks insurance companies attorneys
Notaries and others verified by the minister of the interior uh can accept it online since it is mandatory in Austria to report changes of residence Court service runs relatively smoothly this largely eliminates the need for extensive word with absent curators and civil proceedings as was common in neighboring countries like the Czech
Republic uh of particular importance the judges day-to-day work is the federal legal information system in German or abbreviated phas uh this database system consists of several interconnected subd databases with a similar structure these databases have been accessible over the Internet since 1997 uh sub database with the most
Frequent usage is federal law can I give you an example uh it concerns article 933 of the general civil code slow interneting CS can you see it uh no uh we can see it until now uh you need to change the screen okay you share to your
Browser doesn’t know how how to do it now but you can see it on your screen you just have to use the share screen button and uh just select the browser window then we can see okay so you have to is a keyboard I try again sorp and 933 uh this rule is
Uh is part of uh warranty uh contractual warranty law uh the title is uh warranty period and uh limitation period uh I see that this rule has been enforced since 2022 if you want to see the previous version I can change the cury date so might be you go one slide back
Okay yes yes okay it’s the easier way thank you so this was the version from uh 20 one on yes there’s been so if you go a bit down you can see in this older version that the uh the title uh has changed so this was an
Earlier version so it’s quite easy to work with um the next most Al so we have to go back to our slides okay thank you the next most frequently used subdatabase is Theus Deeds which contains decisions from the Supreme Court and some lower courts as well as decisions from the European Court of
Human Rights what makes brus St unique is the headnote database starting in 1907 1907 the essential statements from Supreme Court decisions were recorded and updated on index cards by so-called evidence Bureau of the Supreme Court the system of references was developed to indicate how recent decision is related
To previous ones ranging from identical and similar to different and explicitly contrary the number of index cards has increased to more than 300,000 until 1996 and from 1994 to 1996 the context contents of these index cards were transferred to an electronic database uh these head notes which are updated on an
Ongoing basis are now freely accessible on the internet I would like to uh uh illustrate this with an example it concerns decisions on electronic legal correspondence okay you see a number of uh decisions of the Supreme Court if you go down a bit uh in a first in an initial decision in
2029 the Supreme Court stated that it is necessary to name the correct Court in submissions in electronic legal correspondence although all submissions first end up at the federal Computing Center in Vienna in the following you can see how the case law has developed uh very uniformly here uh with
One click you can access the full text of the decision thas might be you take the one of them okay yes so this is the full text very short decision uh you can also see the original of the decision as a PDF if you want but we can go back to save time
Okay uh next slide please uh and also there’s an ongoing demand to make the decisions of not only the Supreme Court but also those of all courts public uh publicly accessible uh by the internet I cannot deny that I have significant concerns about this I
Can give you a brief selection of my uh main arguments uh a straightforward issue is that the database would become overloaded making it more challenging to navigate as the number of decisions grows uh the answering of legal questions by lower cours is of little general interest I presume that there are other interests
Behind the call for Universal publication uh mainly interests of facts and consideration of evidence uh and it is relatively easy to uh so I have to uh pronounce the word correctly uh sudom sise so a decision from a higher court and this is hardly the case for a decision from a lower
Court uh soise such a decision would require considerable effort for example the names of Witnesses are mentioned okay this is easy but also whether the judge believes them or not uh this is not uh very might be very interesting for the for a public view but I don’t
Know if you want such a development um I feel that this that is about Judge profiling even if this is always denied moreover I am concerned that the knowledge that the decision is permanently and publicly accessible might alter the way a first instance judge composes the Judgment regarding facts and consideration of
Evidence so far I see no convincing advantages of a universal publication of all judgments so I have now used up a lot of time with my historical review and I can now hand over the microphone to Thomas thank you thank you Maas and thank you Philip
For inviting us I would like to discuss the topic of video hearings under section 132a of the aan code of civil procedure this topic is of particular importance as it allows for legal proceeding to be conducted in a digital for format firstly section 132a of the aern code of civil procedure is closely
Aligned with section three of the first coid 19 to the carry Relief act this means that the condition for holding a video hearing under Section 132a are largely the same to conduct a video hearing certain condition must be met our court video hearing the content of the involved party and the Avail
Availability of the necessary video conferencing technology Additionally the use of autovision of proceding must be considered from an efficiency standpoint a question that arose uh during the development of video hearings in 2020 and 2021 was how the general public could access this proceeding in line with constitutional and human rights
Requirements to address this the decision-making body can can participate in the hearing via video technology consequently at least the charge is required to be physically present in the courtroom during a video hearing the decision uh to conduct um a video hearing is at the discreation of the Court artists can only make suggestion
In this regard the use of AUD Vision proceeding must align with the principle of procedural efficiency the court should also consider the technical requirements ensuring the courtroom is equipped with the necessary technical facilities to allow the public to follow the proceed proceding both R and aush a video
Hearing can only proceed with the content of the involved parties parties consent to a video hearing is assumed if they do not object to the video hearing order within a reasonable time set by the court this period is either specified in the hearing notice or established through a separate order an
Objection from a party does not require justification and results in their exclusion from the hearing conducted via video technology only one party objects to Virtual participation hybrid hearings are possible where only one party participate via video conference in term of evidence collection during a video hearing certain limitations apply video evidence
Collection is restricted to the examination of parties or informed individuals as Witnesses and the presentation or discussion of expert opinions furthermore a vision examination of parties is limited to the first hearing document based evidence and visual inspection evidence are gener generally unsuitable for video technology this uh limitations seem
Reasonable but it’s question why the examination of the parties is only permitted in the first hearing the focus should be on whether the specific type of the of the evidence is gener suitable for video technology or not the limitation uh is not convincing in the context of video
Hearing is crucial to address the potential challenges arising from technical issues or connection problems this can significantly impact the proceeding when sh issues occur it’s important to consider the legal ramification or the remedy this technical failures or connection problem that prevent a part’s timely participation in the video hearing
Typically lead to Assumption of a judgment based on the default of the party in other words the part is unable to ENT the video hearing because of technical issues the court May proceed with the case of it uh as if the absent party had failed to appear to mitigate
The impact of technical failures the legal framework provides for certain measures firstly it’s possible to extend the video hearing the uh extension can be requested by a party or Grant by the court exito such an extension may be justified in cases where a video conference doesn’t start on time or when
There’s more prolonged disruption of the when a technical issue or connection problem uh arise is the um responsibility of the party to inform the court promptly if an extension of the video hearing is not possible and the for consequences occur that the foring party generally has the option of seeking reinstatement reinstatement
Allows the theing party to request that they be placed back in the position they were in before the Thea accured however it’s important to be aware that seeking reinstatement may have cost IND in some cases particular in specific areas of civil procedural law such as insv and enforcement proceding reinstatement may
Not be the an available remedy in conclusion technical failures and connection problems during video hearings can have significant legal implications so thank you very much for your attention yes thank you very thank you very much thas and thank you Professor Nora for presenting and um especially thank you
Very much Professor nor for joining us out of the hospital which is uh very um which we really appreciate that you’re partaking um from there and um now we just go on with the presentation of bar CL and uh we’ll hear something about the developments in the Netherlands just setting up the scene
Inside here and you might see it already on the screen at home thank you very much thank you very much P for this very kind invitation to this beautiful University and this very well organized once again colloquium a pleasure to be here um what will I try
To speak about um some developments from the Netherlands um a major digitization project for civil proceedings which almost entirely failed um and the principle of public Justice and digitation on civil proceedings and don’t worry this looks like a very balanced menual for a presentation it look like a very fair
Menu for a presentation it’s not it’s not balanced and it’s not fair H I will try to tell you why it’s not balanced and why it’s not fair and we will come to that but don’t worry I keep my track of my watch I will try to end just before
Sunlights and I speak too long uh I trust that Peter will push the button and give me a sign and I uh why am I telling you this is not fair and this is unbalanced that simply way expectation management very uh it’s B what let’s talk about the major
Digitization project inance which almost entirely failed and this is not a joke since 2017 proceedings in the Netherland before the Dutch Supreme Court are digitized there are fully digitized proceedings ination so just reported that should Court they’re digitized Supreme Court have their own online system their own online system Cass
Lawyers were proceeding in cassetes they know their regime but it does not apply to lower courts to courts in first instance and Court in appeal we have three tier system as in most countries so lower cours do not have a digitized system in 2013 so almost 10 years ago it
Was decided to start a digitization project a serious project on digitization a huge project was set up it was not meant as a tiny project now that it was at least to say it was ambitious it was really ambitious the name of the project short abbreviation
In Dutch was K and K is the Dutch abbreviation for quality and Innovation qualitate and innov quality and Innovation so everybody know the project in analis k k is also Dutch word for I don’t know why quality and Innovation okay was really uh ambitious it tried to dignitize and to modernize civil
Proceedings entirely the intention was not only to simplify the proceedings which are quite simple in itself already but also to unify preexisting forms of civil procedure just to give you one example of the ambition of the project as in many many countries there are several types of civil proceedings in
The MS we have civil proceedings on let’s say commercial cases but also several proceedings in family law cases and in soleny cases they have their different regimes regimes procedural regimes in commercial cases are not the same as procedural regimes in family law cases and in solvency cases there’s a
Serious distinction between decades and decades one of the goals of this project was to harmonize it all to harmonize it all and let us design one size fits all as said let’s try it be be aware with one size let’s try to be agre of all these distinctions let’s make one
Example of how to digitize civil proceedings um let’s make also it possible that all the variations which could happen in civil proceedings could be part of this new online system involving third parties all the entanglement concerning evidence uh Joiner intervention indemnification it should all be part of this system so all
The variations which one can think of in civil procedings should be able the new system should be handled to Able all these variations so it was really ambitious at first when the project was set up the costs of the ICT project were budgeted at around7 million
EUR 7 million euros um the train started and the train started rolling and somebody said will this work are you quite sure that the ICT can handle it yes it will work okay perhaps a bit more than but it will work it will work the legislation to make this possible was
Prepared not just prepared seriously prepared legislation was brought before Parliament to make the enactive possible serious but not over lengthly debate in second chamber first chamber so pass it passed Parliament amendments here and there but it it passed I cannot say it’s fine course the legislation process was almost over almost it passed
It was also put in the official journal in the Netherlands now this can be enacted there only one thing which had to be determined the date of enactment so it was it was pretty there should pushing the Buton let’s say let’s start on January one year not determined the
Only thing which was not determined yet was the DAT an why not because the technical DRS kept filing up and filing up and filing up the ICT turned out to be more complicated there were more warnings will it work will it work oh it will work let’s start two District CS in
The Netherlands as a pilot to Midland and K to regions in the Netherland started the district district for started to use it in the pilot CR start adding up and adding up it was no date for but the Parliamentary process the legisl process entirely F just the DAT
Had to be Ed um in 2019 the ministry of Justice said well this is getting out of control at that time the cost had amounted to more than €2 200 million EUR it started at 7 cost2 200 million EUR then somebody pushed it but stop the legislation process was
Already finished just dat was not there yet and then we had to start a new legation project to repeal this act and this this repeal Act was brought to Parliament at that time cost for over €220 million EUR and it didn’t work the system simply did not work it was too emissions it
Wanted too much so the ACT to repeal it that was quite easy to repeal it bit more complicated not to repeal it but to for was we make a reset we make a reset and we try it again and the main point of repeal act
As we call it stop act as it’s referred to stop guy stop quality and Innovation let’s do a reset it was not entirely say we will not go forward no we must do it step by step not too ambitious all at once so what we’re doing now we’re
Facing the situation that is €220 million which came from the budget the regular budget of the Dutch Judiciary the budget courthouses and lawyers are pay for so this a serious amount of money I don’t know the percentage based on what it is so this is too much now we
Stop it does not work at that point we said let’s try again back to the drawing table and now step by step by step see what we’re going to so um this is a situation in the lens and perhaps perhaps one of the lessons that which can be learned from this really Cy
Project not too ambitious at once it doesn’t mean we’re stopping digitization no we not stopping it but we’re doing it one by one the focus is now more on digital accessibility instead of digitizing proceedings at all digitizing accessibility perhaps some online hearings perhaps some online delivering of accidents but not the entire process
Digitizing at all that ambition has been stopped for now so that’s the first part of I wanted to talk about and preparing this presentation could have inspired me to to dig it up and as a follow up on let’s say the kle what happened in K the quality and Innovation product fundamental rights
Proceedings why did I tell you this was the Balan reputation I’m hopping from one top to another I’m trying to make bridge but Bri isn’t there so trying to see what’s the next one if we try to digitize and we still are but now in the Netherland we still
Are but step by step one of the main points is let’s not forget the fundamental rights and what I want to talk fundamental rights on two topics online hearings and the public aspect the public aspects on online H why those two because in the last years since 2022
And this year we had two decisions from the Dutch Supreme Court on this topic let’s see let’s start with the first one from April last year so not this year but last year what happened in April last year what happened over there um in this case an oral hearing took place an
Oral Hearing in pandemic times the oral hearing took place let’s say I think it was somewhere in summer 2020 so in digital in pandemic times and over here two place not a physical one I will spare you the substantive legal dispute I will spare you the details because the
Case reachs the Supreme Court and the only question the Supreme Court had to rule on was in this case an online hearing was it allowed and two elements were in particular brought to the attention of the Supreme Court publicity of administration of justice and the right of parties to an oral
Hearing in this case the right of parties to an oral hearing there were complaints Thomas Garber already spoke about it there were complaints about the oral Hearing in this topic because there were technical issues the hearing had taken place but there were technical issues with the with the connection with
Interruption and one part said there were so many technical issues I my right of access to the online hearing was in fact viol was in fact violated because of too many technical issues and it may concern the degree of speaking time the ability to respond on scaffolding or on
Pieces in practice a lot can go wrong um these kind of technical problems at least in the Netherland unfortunately they’re not in common but they’re there and they’re serious reason that are spoke about it already it may very well turn out uh to be difficult to establish
What went wrong at the same time the time set for the all hearing can be really limited so there may be some tension for the future between Pro of economy and the right to both ways it must be made sure in some way that the
Right to be heard on both ways is taken seriously it did not come to a decision from the Supreme Court on this topic I will spare the details rather technical accusation matters the Supreme Court in this case only decided that in this pic times the specif specific circumstances
A digital hearing was acceptable what went wrong and what were the flaws that’s up to the lower cour to decide perhaps there will be followup case law on it but in this time that makes sense the time when physical contact physical presence was almost forbidden of course
In some cases digital should be made there and then the right of public access to Justice the right of public access to Justice in the same the same position track time don’t worry about it lot of public access to hearings and the importance of openness of course is there it lies in the
Controlability controllability of the Justice by the public publicity contributes to public confidence in judiciary that’s made clear at the same time Public Access is not unlimited the end of 2020 so almost three years ago the dist Supreme Court already ruled not being able to access a physical Hearing
In a physical room does not take away the character of the public character of a hearing if the public can follow a hearing by other channels that may be ground for public for complying with public rules as well and that makes sense digital accessibility to hearings makes it possible for those interested
In the treatment to follow and several authors have welcomed in have have welcomed the openness of live streams and even in some cases Judiciary promotes the use of live streams promotes the use of live streams and is actually doing so for example via LinkedIn Etc and is argued that
Following hearings online should be made possible in more cases and the argument is well the hearing May Theory be public but in practice this means and I don’t know if there’s any connection with this line of reasoning among certain Scholars but the public nature of civil proceedings becomes more
And more preminent prominent in the last case I want to deal with because this one from 2022 I was just seem to be the let’s say appetizer or p in the road for the major one from just a couple of months ago and I think this decision was
Even taken after we decided to set up you decide to set up this collum so uh um let’s say a fresh one relatively fresh one um what is it about third parties and information on pending civil cases and this is consider a big one in what is it about um this result from
This decision from April it did not concern ordinary proceedings in cation but they SoCal what we call in the Mel cation proceedings in the interest of the law in the interest of the law that means case kind to First instance to Second instance but there was no appeal
Loded to the Supreme Court so the case the decision from court of in second instance had become Reata Reata was already there the Dutch civil procedure law offers a mechanism if a decision hasata there will be a possibility and option to apply C to appeal cation in the interest of the law if
There is a matter in the interest of the law you can L it if there is a problem to l to the Supreme Court if somebody wants to have an answer on a very important matter that’s what happens the Attorney General to the Supreme Court LOD the appeal not the appeal cannot
Make the positions of the parties Better or Worse of just stating there is a question at hand which needs to be HED for say for the public character that’s what called cation of the law what was the case about a lawyer had asked the register of
The District Court of De to inform him whether any proceedings between certain parties are or were pending before the court so he mentioned the party and said please Mr or Mrs register can you inform me whether on this party some proceedings are pending and the register of the district court in the refused
Simply pushed on red button said no why not because register said there’s no specific request for a copy of of this and this judgment you do not mention an number number you just ask for a party give you all there is the cour said no that’s not specific enough um that’s
Lawyer started proceedings summary proceedings and according first instance summary proceedings um they two decisions he granted the request to provide copies of all judgments to which this party which the person was the part is that if you men party a you must provide all the deis with party a but he
Did not Grant request to give all pending proceedings that first made that distinction this was taken up to the Supreme Court why was it taken up to the Supreme Court in the interest of the law because it turned out it turns out that there are severe distinctions severe variations
Between the various District Court ands I guess if you would ask reg of the court in the ha the answer would not be exactly the same if he would ask the register of the Court an answer them or what or oron my guess that the district courts would not do give exactly the
Same answer some kind of uniformity may be good so what did they decide to do to go to uniformity um the Supreme Court ruled on the topic and ruled on this topic they took the opportunity to give seven decisions I will not deal with all
The seven no worries I know the last new and beer I mean discussion so I will not go into but only one aspect I’ll live they took the opportunity to give seven decisions on the public aspect of filamental right of digital procedings because why am I mentioning those two mainly apply not
Mainly but also apply to digital proceedings and the main one is then Supreme Court makes a distinction distinction between three aspects on the public character of civil proceedings providing information on access to public he it’s providing information on access to public years providing judgment and providing other information
Such as pending cases so access to public hearing providing judgment and providing information on pending proceedings I’ve not heard many scholars about theine as in but I think there is a uh there’s a part line of reasoning underneath the suprem court starts with referring to sturg extensive referring
To sturg of course article six article six of the European convention is mentioned extensively what does article six mean in this aspect for proceedings the Supreme Court says well district courts are required to provide timely information are required to provide timely information to any person requesting it about place and time of
Public hearing any person requesting information about place and time of public hearings indicating the cases that will be that will be heard the case it will be heard at that hearing the names of the judges hearing it except for let’s say privacy group don’t expect extend into privacy rules they deliver
The privacy rules so and the Supreme Court explicitly adds in case of an online hearing courts are also required to provide information about the method of accessibility about the meity so information from online hearing must be provided providing the Judgment the judgment is pronounced public the
Judgment are and the N not all but the vast majority of judgment is pronounced is published on the formal website of the judge traditionary is published on a formal website but still if it’s not look my and I’ll wrap up if it’s not even if it’s on that website parties and
Even third parties can ask for a judgment on a case which has already been uh handled with providing on pending cases that’s the piece of PS the main part of this position of April 20 2023 um on this for there’s are interesting aspect concerning digitization of civil proceedings
Because when the proceedings take place dly there may be less public character before were do sessions dock session only administrative decisions were taking place those do session in theory everybody could attend but when it’s digitized nobody will be there so no so the strange effect may occur that these
Docket sessions they’re no longer public no longer have Pro the character although the system is more digitized because it’s only the lawyers who have AC who have access to that system so there may be a contradiction in that system what does the Supreme Court say the Supreme Court says um the principle
Public principal fact to Justice must be made uh must be turned out in such a way that the list of cases to be heard in a court should be available for all should be available for all to consult and this means to Supreme Court I’m quoting translated the current practice on
Public character of civil cases is therefore not correct in the Nance and they do not stop there they say it’s not correct but they also give an indication of what should happen next it’s up to the courts we suggested the lower courts the Supreme Court state to make nationally form National Arrangements on
This point for example in the form of procedural rules also including the public character doet session and online hearings there’s ample attention in this decision for privacy regulations I will not go into that it’s quite clear the Civil proceedings also until aspects of fundamental rights in conclusion perhaps if you said the K
Project which almost entirely filled do not be too ambitious at once digitization entails new questions on the public uh public principle public Justice fundamental rights must be taken seriously and it’s almost impossible to leave Gman without quoting because what did he tell us um he told us he made us clear that there
Was a relation between jokes and civil law if I because if I’m told and if I informed correctly he tallest once that jokes and creditors should not announce their arrival too soon thank you very much for your attention thank you B for the excellent presentation and on the developments in
The Netherlands um I think we now turn to the discussion we’ve got um some time left so we’ll discuss until um we have I think we have finished so we don’t have to stop 6:30 we can go on a bit um in our time schedule um if you want to
Partake in the discussion and address your question um in the zoom room then just use the possibilities you know um you already know and uh the same applies to um the discussion um to partake the discussion in uh the Youtube stream and um for questions or comments uh in this
Room you know how to address itself is are there any questions from your side not not yet at least so I will I will just um start the discussion with some questions I’ve noted down and um um the first thing I want or I’m interested in concerns Anna’s presentation um you
Have said that considering um considering ing the developments um of digitalization measures in civil procedure law um is dependent highly on the acceptance of the digital means by the involved parties so um as people are quite different people may have certain uh um certain favors some like like to address their topics bit
More by digital means some others rather um uh rather like um addressing um their position in paper or in person um how do you think we shall cope with this differences and maybe also a digital divide between people who are not so familiar with um digital means of communication
And those who are how shall we approach this and the second question consider is concerning the techn techn technology dependency we have um what do we think will be a good advice for German lawmakers to address or approach um digitalization measures um as you know we’ve got the German federalism we have
A couple of lawmakers involved in setting up uh the the Justice administrations um even though the civil procedure is a federal law the administrations are um business of the lender the German lender and so what would be a good advice to to um to achieve a good outcome in
Digitalization or at least from your perspective um oh um um thank you um I think um when it comes to sort of acceptance um of digitization digitalization that you have to um of course you cannot go on an individual basis um very much I think um of course
To some extent you could do that but for instance in Norway we have we have rules that um one party cannot stop um a remote hearing or remote examination of a witness unless there is a good reason for doing so so like a week ago we had a
Spell of really bad weather around the oso region so that would be a day when when you uh would say that there would be quite a high threshold uh not to hear a witness uh online uh simply because due to the weather conditions you cannot
Travel um but I think um I mean across countries and across groups of um cases or or party constellations you could do that and and I think uh if you compare uh Scandinavia in general and Germany you see that uh we have quite different approaches to technology and I think
That that um the legislators and and judges have to take that into account that whereas as sort of people in in Scandinavia Norway would say that if you don’t have a digital Court then then there’s something wrong with the court or that’s something why are they so oldfashioned
That this cannot be good and then at least my impression sort of that Germans are more hesitant um for better and worse um it goes I think both ways but you have to take that into account and also different kinds of of cases but we know and need more information we
Know need more knowledge to make if you want to make different rules for for different situations and and of course we have to mind a digital divide but when we did a book I think there was for instance they had these Zoom rooms in Singapore so it could be a place where
You could go and actually then um like have a room where you can sit and be online you could have places where where you can go and get assistance uh and you could even have devices because we know many people poor people they only have their telephones and maybe um not not
Really too much in Scandinavia but elsewhere still rely on on the mobile net rather than having high speed uh at their home and and um and so forth and as for sort of um giving advice um I feel I’m I’m not really in the position
To in this Federal um system but I think there is one thing that’s uh that’s good with a federal system is that you can actually you have these sand boxes uh of the the the lendon and and some of them could be more willing and they to test
Something out and and some could be they could test different things and then uh cross fertilize whereas in a small country um often you cannot do that and also learning across courts becomes uh difficult because we don’t have a system to put that in place but thank you for a
Difficult question I don’t think I can give a better answer than that no that was a very learned answer and especially cons considering um the Nordic countries um you may have some some elements of cooperation there as well and is is that the case that you exchange your views
For example in nor noris um um on on digitalization issues there as well um well we have different kinds of sort of uh formal and informal cooperation but um yes ideas travel for instance at the Nordic um Association for procedural law meetings then then we discuss uh digitization and and often of course
Because the countries are quite similar populations and um similar in in their acceptance of and and the existence for that everybody basically has highspeed internet in their home and and and that has to do with what can you expect for is during Co charges to do from their
Homes and and parties to do uh so yes uh that makes it much easier to exchange uh ideas but of course having said that we actually lag behind the Baltic states uh so there are even some of them especially Estonia is much more more digital yeah thank you very much um I’ve
Got Bart on the list and then f after you I’ve had the floor already okay uh first of all um I just a remark um when I’m not doing proper procedural law um I’m in the field of Ethics um and sitting with the German ethics Council
And we had quite a similar debate on a huge opinion we published last year um which is called man and machine um it’s about artificial intelligence and watch um um much in line with your um do not speak about AI speak about Salam um and this is really um also the bottom
Line of this very long opinion that we should not um take these phrases for the substance so it’s it’s not intelligence in the sense we speak about intelligence um so um let’s have a closer look and I’m very much agreed with both of all of um four of the presenters um that we
Also have to um to look what um what our fundamental guarantees and procedural principles are and one thing is um and that’s the question for you Anna um you just mentioned it is a digital digitalized civil procedure really a civil procedure for everybody yeah it um even in in Scandinavia where maybe
Technology um and high speeed internet is available for most is it actually available for for everybody first or first part or are there we take long ways to include people with and with several disabilities vulnerabilities in our standard traditional way of civil procedure um and I haven’t read and um
Heard much about um attempts to do that in a kind of digital version um this seems to be um not in the focus of uh the the fans of digitalization um and um for our oen colleagues online I do hope that I can be heard by you well um
The issue um B spoke about um publicity of hearing how do you deal with that in this Austrian um video hearings video witness conferencing um how do you provide for for um that that would be more pra maybe a more practical but also a very principal question because
Article six of the European Convention of Human Rights is also important for Austria as we all know so um how do we how do you deal with that and first and last but not least um to you part um the um is it really the same type of
Publicity if you just video stream everything or doesn’t it change publicity as such thanks if if I start with um accessibility actually there is research from the US uh I think he’s called David Larson who is a professor at uh Mitchell hamling law school has done done this uh
Research uh he has done it also on on on other um accessibility issues and I and there’s also I think she’s called Amy schz or something like that uh Schmitz I think uh who has also written uh on uh the digital divide um and and has I think very nice articles but I
Absolutely agree that in the European debate these voices are absent perhaps our colleagues online want to react to theing question uh to pmic is uh it was very difficult um for for the public to join uh to join the judge but um uh now the
Judge has to be physical in the in the courtroom and uh the public can go to the to the courtroom and uh and join the uh uh and join it so we would not accept is not digital it’s physic uh yes for the the judge uh and the
Public is physical only the parties can join um can join via video techn video hearing just as an addition to this um has there been a discussion when um when enacting um was it article or paragraph 32A um was there a discussion going on about whether to um provide for
Live streams and um enable a digital pres presence and how to cope with personality rights data protection um and and and things like that was there a discussion going on in Austria uh yes uh huge discussion about this question uh but um and uh different solutions um but uh but now um section
132a um says that the the chge has to be in the in the courtroom and the public can go to the courtroom okay back thank you bker for a intriguing question my answer would be two-sided um online is not the same as physical an online hearing is not the
Same as a hearing in a courtroom and it applies for lawyers for parties but also for the judge I can imagine for a judge it’s really different only you listen to a voice you already already spoke about the example or looking the witness in the eye looking the witness in the eye
In the room and seeing how he reacts and for the parties to see who the judg is and see who the judge reacts may be very difficult than just an online hearing so for hearings there’s a huge difference for exess um it may be also two-sided because being in a room publicity on
Being in a room is different than public just online but perhaps the during the pandemic we noticed that more people could attend hearings online that people would have attended a courtroom so it’s a different way of publicity but it may turn out to be the case I’m not
Promoting it but just uh uh trying to establish what’s going on that online presence uh uh enables more people to be there than the factual than by the boundaries of the size of a courtroom uh so it’s a different size of publicity different type of publicity but it may
Turn out to be more publicity in the end I’m not quite sure what you final answer will be but thank you for the thoughts well the final answer answer would be it depends because it’s always in private law May if you allow so that would be an argument
To um broadcast everything that is happening physically via TV as well if I follow your line of argument at the second part so if if you video stream everything which is happening online we could also broadcast everything which is happening in the courtroom um and I think there are some
Arguments against that sure and maybe they apply to the online system as well exactly the arguments against the arguments which are there for physical hearings uh attending would apply to online hearings as well especially the gdpr and privacy rules they play an important role uh that makes sense but
At the same time that it’s argued very much at least in the N there should be much more openness and much more online hearings where it’s includes line of reason I’m not quite sure but uh we see there’s a tendency to in that direction um but privacy rules well let’s take
Them serious but I’m not speaking only about privacy rules I’m my question is directed to uh whether there are procedural reasons or not doing that whether and that’s what my question with whether it does change the type of proceed or the proceedings or the character of the proceedings as such so
This is a procedural argument not a privacy right argument and and I would uh say that this was um during the pandemic a discussion in Norway and what happened was that Norwegian Court started to limit the number of seats in the courtrooms by saying that only so and so
Many people people can sign up to watch uh the online streaming and of course one person you could gather a group of friends and family and invite all your neighbors uh although I I I very much doubt it and this uh to um sort of that it’s not for the general public
Particularly in lower courts where you have witnesses uh where you have parties you then start to present and this is very different uh nowadays the the Supreme Court streams uh some its hearings and and and for who is also um a professor at my University knows that
Some some colleagues uh listen then in but they’re on matters of law so you don’t have this W witness who uh needs to put on a show and you don’t have the parties who will want to put on a show yeah I think that’s that’s a good point
Um I think at least um in European tradition civil court proceedings are not not made for the audience uh to entertain we’re not we’re not um setting up Court TV like maybe other countries do um I believe nevertheless that there are still technical ways to safeguard personality rights data protection and
The rights of the of the of the judges that might be under pressure in high-profile cases civil proceedings there exist such cases um especially the diesel gate cases where there’s a high public interest um and uh in these cases there should be the possibility to exclude the public to or to limit the
Public to the courtroom and uh so I don’t think that it’s a contradiction using video streaming of court cases and safeguarding personality rights it shall be um dealt with carefully and there are technical uh measures to prevent personal rights data protection rights and so on and if it’s not possible to
Safeguard these rights by um design of these instruments then there shouldn’t be stream that’s how we do it in family cases when there’s somebody to protect we exclude public once again I’m not speaking about privacy rights or um yeah or data protection so um that is I think
Second TI um for this it has to be um protected in any type of proceedings so I’m um my question is directly to whether the proceedings or the character of proceeding is going to change if we for example um set it up as um cro TV yeah and online streaming is just a
Different means it’s the same in my view um the effects or the um the re effects on the procedure are just the same but if we are critic critical towards courtroom TV um why aren’t we critical towards online streaming of or and that’s not for privacy rights it’s about
Um whether the procedure as such and the outcome of the procedure changes but your argument was it’s not for the public to entertain them um right so why not it needs to be a public hearing it’s even um in the European convention human rights it’s one of our fundamental
Principles of civil procedure or procedure as in cours as such um and for very good reasons but not for the public to entertain um and um I think part um you very carefully noted all these arguments the um Dutch Supreme cour brought forward what are the conditions
And and they tried to kind of um uh uh um argue argue with them and come down with a specific conclusions from that this all have nothing to do with um kind of uh the publicity in the sense of what is the interest of the public but what
Is the function of publicity and that is in my view um the question we need to ask more in detail and maybe the the Dutch Supreme Court is right maybe there is something missing so that is the question um and that has nothing to do with privacy rights at all yeah that’s
Right so sorry that I’m so insisting but I think that that is the procedural issue no sorry there a hand age with you on that issue that it’s a different different character I just give the word to Tess B and then maybe we go on the topic test B yeah yes
Thank you very much yeah I completely agree with Professor lip I must say with respect to we should perhaps more ask the question of what the function actually is of making hearings available public I mean we can also try we could also try to ask who would actually watch
If you would live stream all Court hearings there would be an abundance of Court TV I think you wouldn’t be able to choose I would I have like 100 channels on my TV and I already can’t choose what to watch so yeah let’s not overstate the
Concerns there by the way I um currently work in fenna I work as a research assistant to professor burkard H and I moved well that means that I now have some familiarity with RIS and in that context I wanted to raise well to least address two points um that Professor
Norer raised the first is the concern of um against total publication or at least more publication even in general so first the concerns of anonymization um and I would very much like to hear Professor K’s opinion on this afterwards so in the Netherlands quite a lot is
Anonymized and um you can up to a certain extent question what to what extent it should actually be anonymized for example if you do private international law it’s quite important that you know the country that you’re dealing with because that may of course result in different applicable laws or
The jurisdiction of a different C I’ve seen Dutch Court judgments on reel that were so anonymized in such a way that it was just vone plat domicile poop or well between brackets but still you can’t deduct what country it is from so yeah I think regarding the process of
Anonymization who does it there there certainly can be some concerns and there are certainly mistakes but I’m also wondering whether this process will be perhaps become easier in the future especially with the help of AI um also with respect to the Comon that or the argument that um judges
Might fear that the judgment is permanently and publicly available what’s the difference between what we do now with case law journals we add a fancy comment to it but it’s also permanently and publicly available you can go into University library and find it so I think the concerns are a bit
Overstated and regarding the justification perhaps it’s exactly what Professor K mentioned it is the principle of Public Access that requires you to give access to these hearings and perhaps even going further tying into Professor Nan’s accessibility concerns I mean if we make it available it should also be accessible it strikes
Me that the the especially the Dutch data bases are much easier accessible than the Austrian ones so if G I’ve I lived in Vienna for one month and I’ve already heard the quote well Gustaf Mala saids once that everything in in Vienna happens 10 20 or 50 years later people
Seem to have different opinions on it but could AA perhaps in disrespect learn something for the Netherlands sorry I it was a lot of comments and also a couple of questions but I hope to at least made a small contribution to the discussion thank you very much I think
The first question went to Professor norm and maybe yes concerning AR um it’s a question whether uh Supreme Court decisions are uh publically accessible uh of course they have to be accessible uh it’s a in my view it’s differently to see if you U if all Court decisions first instance and second instance
Decisions are also um public U uh have to be uh public for for everyone uh because it’s I I think there’s a difference between matters of fact and matters of legal questions uh of course uh all uh Court decisions uh concerning uh legal questions dealt by the Supreme Court have to be uh
Public uh that’s also a question of of article six uh of the uh convention uh but I think we have to discuss some more different we have to differentiate if uh question of fact questions of uh consideration of evidence are also published uh this would in my side and
Here I agree with Professor lip uh uh change the structure of the of the procceedings on the one hand and on the secondly we have also to talk more about uh um the rights of the involved persons uh so the second question was Um anonymization uh yes there are projects in Austria doing this with uh Ki AI um uh it is the same question uh I think it’s uh we are we don’t we wouldn’t like uh quad TV in Austria to so uh austri is I would say there is unanimous uh unanimous un
Animosity among the Judiciary that there should not be um public streams of LIF streams of Court hearings uh uh so if you want to attend a court hearing you have to you can physically go uh to the court uh and uh this is uh comparable to the question whether uh
Um all the decisions of lower court lower instance sads with dealing with effects are uh should be uh publicly accessible yeah thank you Prof and um I think B was mentioned as well considering yes I will considering the publicity I think it was thank you yes that’s it just
Looked it up thank you very much this for for mentioning RL and uh it’s true that it’s the Dutch system on access of judment it’s really accessible I can show you on the spot where I will not do so but it’s really accessible it’s really easy to find cases you can find
The decision of the Supreme Court the conclusion of the Attorney General the decision of the lower courts which is based on that’s really accessible and they’re not all there but the vast majority is published there and it functions in general quite well uh and what has also mentioned was the
Anonymization that takes place and you are entirely right as in mentioning that the anonymization sometimes it goes too far you mentioned the example of International Private International you’re entirely right but also for Pure domestic cases if you want to anonymize you have to take it seriously you can
Leave out the names of the parties but if you see the address of the house which is which is part of the part of the debate well you can find the house if you can find the the car which is part of the debate in the commercial
Case or you can find the name of the company is part of the m& deal well you you can find almost every detail so there must be a balance between anonymization and accessibility and access on public nature of the Judgment so I think it’s time to redefine the
Concept of how how far do we go with anonymization perhaps in some aspects we take the anonymization too seriously because it might also until to the fact that it’s no longer able to control the hearings uh uh to control the Judgment effectively uh but I see you raise your
Hand T perhaps you want to re I just want to give you one very interesting example that I recently found in the case law of the court of justice of the European Union that also concerns well um up with anonymization um while while I was doing
Research on a case I me I there was a document on quera that shouldn’t actually be there it should it was there instead of one of the um application documents it was instead something different some word of a um that the name of a party had to be changed
Because there was an e omitted or something so a colleague and I well we looked at the document and then struck us that we could actually scan or at least just put the cursor of our Mouse over it and copy what was under it so there was
A black line on it but for some reason we could still copy the name from it and because there was a difference between the diff the versions of the aniz versions I found out that it was a Maserati um in fact we were able to trace back to the house of the person
Involved now I must tell you I’m not going to tell exactly what case it was because I know it’s being recorded but I just wanted to mention it to to show how easy it is and also that you need to take care of the design of the digital
Environment especially with with uh it’s not just about blacklining everything it’s also sure it’s also making sure that it cannot be unblack lined through the use of software so yeah and also um well one thing that I forgot to mention it always strikes me that well everything is placed in the context of
The echr and that’s more related to Professor normai is coming but just thinking again on accessibility and also as accessibility in digital proceedings well I there’s also conventions like the UN convention on the rights of person with disabilities to what extent are we actually taking those into account in
The design of civil proceedings and in this digitalization process and in this context is certainly worth both to mention recently published well I think if was was actually last Monday um the ICC uh guidelines or ICC guide on disability inclusion International arbitration I think also for for civil proceduralists it also
Provides some some inspiration and some of the principles that we can actually transfer to civil proceedings thank you very much um T um Anna you you’ve been mentioned as well do you want to respond as well on the topic or no good okay um as we can see
That depending on the design how how how anonymization is performed either by digital means or by hand I just received last week I just received a document a decision of of of um of gan um and I asked the party to send it to me anonymously um because I
Wanted to just check um if it’s if there’s something in it that I can put an expert opinion on and there was a handmade line there with a pen that was not very good um and anonymizing um a document that is scanned afterwards with a light light source so I could read everything
So it really it really depends on on how how um the the analization is performed and as well it depends if the on on how um the video streaming of um Court proceedings is performed whether the character of the hearing is really changed um publicity has its functions
And I think um the functions are not um are not um um violated if if publicity is provided by Liv stream it depends on how you set up the system of accessing the live stream and which information is provided on the Liv stream if it has any influence on the character of the
Hearing itself because if there are only experts lawyers having a meeting and uh the public hearing is there and somebody who’s public can access the live stream but does not see the details there might not be any influence on on the character of the hearing but if it’s a if it’s a
Very important case and um Stakes are high then there might be an influence if if the hearing is transmitted via the Internet and then the character of the hearing and publicity might be changed as well um publicity and Publishing um Court decisions I think is also um a big
Issue in Germany and espe especially um when there is a call for um publication of all judicial documents all decisions of the courts um there are advocates for this and um there are interests especially in uh in the insurance branch that um Court decisions are published because
Then they can scan the documents and scan in which regions several judges decide in which way and then they can adapt that that products accordingly um so I think publication of of judgments whether Anonymous or not is a big issue especially with the use um uh with the use for for
Outside purposes outside the C proceeding I think that’s also also an issue um and I think um one has to think about that whether we use Big Data of Court decisions for the use of training AI as well um because if we publish every doent and put it on the website
And then make it accessible easily and um AI products are trained with all these data then even wrong decisions form decision making process by the ey and that’s that’s also a problem we have to take in mind I think okay um well done are there other questions
Yeah but may I ask one question to Thomas Garber um because if I remember you spoke about um online hearings and technical issues uh and the technical issues may occur also in Austria or even in Austria um are there any it’s just a factual question are there any practical
Guidelines for judges or courts how to deal with those with if an internet connection internet that connection is interrupted or there’s a technical problem which occurs on one side and the other party doesn’t have the technical problems are there guidelines or experiences in Austria on that topic uh no guidelines in in Austria
Um we do not know what to what to do and we have um uh special remedies but not for all uh but uh but not for all civil procedure for example in Sven or uh La there’s no re reinstatement and it’s it’s very difficult to handle it thank you that’s
Relief missing exactly we’re not the only one who’s missing the yeah thank you Thomas so maybe Bart I’ve got an additional question for you the kai you said the kai project has failed completely but um so one decided to to take it step step by step yes is there
Specific plan how to approach digitalization there is there working group or set in yes there’s a working group uh I don’t know if it’s called formally working group it’s part of Min Justice there’s not a plan from A to Z but the plans are to do it step by step
And the first focus is now not to make a system which is entirely digitizing the entire proceedings but to increase digital accessibility digital that’s the first step and now we see some Pilots going on in rdam I think since last September or perhaps even October there’s a pilot going on on digital
Summary proceedings uh you see District course setting of Pilots but mainly based on that’s the first step on digital accessibility there’s also some pilot going on on digital seizure of evidence or seizure of spur and assets but it’s only step by step I’m not sure whether there will be more there are
More ideas behind the screens because if they if they they say well we got to we want to go from A to Z perhaps it will turn out that the same problems with occurred in K will F will will pop up later on so now they’re doing step by
Step and who knows what will follow afterwards but digitization the communication with the courts that seems to be a good idea and that’s that process going on yeah okay thank you very much um one question which um came up when you Philip summed up our discussion
On publicity um I think Al um the fundamental guarantee um does um cover um that judgment decision is to be handed down in public that’s for sure but that is not the same than making every decision public after that um so we can’t discuss on publication or
Making available um uh decisions for the public um but this has nothing to do with procedural guarantees that is about um how we Ser we regard that as being a service to the public or whether it’s important for developing the law and what maybe uh do we do we want to spread
Wrong decisions or absolutely uh hor horrific decisions in the same way than very profound and well thought of um Superior Court decisions um these but these have nothing to do with procedural guaranties um and and that’s one distinction I would like to argue for that we should be very careful um about
What is we are discussing about so and um that is related to the topic we touched upon uh after that um speaking about accessibility there’s quite a difference whether it’s about accessibility for um parties to um a procedure whether we would kind of making that easier by using digital
Tools whether it’s about um accessibility for the public um that is about publicity issue or whether it’s the accessibility for people with some disabilities Etc um so we can all call these accessibility but there are very different issues and I want a specific point um when you and in your um uh um
Uh first speech um gave some examples which were quite highlighting some problems um which came along um very practical and more technical um whether um we now have the chance to update documents in a um if you have an electronic system of hearing is it just um matter of practice of electronic
Technology which we haven’t had before or is it um about um the procedural issue that we need to keep track on how proceedings have been conducted and whether something which has been later made uh needs to be struck out because um it was beyond the time limit because
It was for delaying the procedings what and if we just update documents it’s very difficult to keep track of all those changes in the two course if you have kind of a very traditional one you can also um transfer that to the digital world that is not a problem so um the
Roow of the T in in time the timeline of the proceedings is not just a merely um documentary or um practical thing which is um um kind of comes or stems from uh the paperwor um it’s it has a procedural sense in it um and um if we just
Digitalize that and say oh no we can update documents now that’s far more convenient Etc and then we have kind of a SharePoint everything is everybody can write in the document at the same time and somehow the system will some sort it out or not and there might be some
Mistakes and I so does that really serve the necessity of having a proper documentation that need not be in paper but a proper doc mentation in any form regardless which technology we use and maybe andless is kind this is also one of the reasons why the K the project was
So becoming more and more difficult and more and more expensive because then in the ongoing process people realize that they need to take care of all those issues which they haven’t thought before because it’s all they regarded this as being so simple the beginning yeah thank you very much f for
For um the comments that are I think true I think um Hanna will reply on that I I didn’t suggest that we wouldn’t keep track I think it’s very important that you keep track and it put limits to it it’s just that I said my suggestion is
That we we need to uh imagine and and look at the opportunities that’s there but of course we sort of need to keep track of things and and you have to be able to go back to previous versions and how we resolve that is another
Thing I have one final remark on the on the question of course you have the final fundamental principles and the issue of publication of of judgments um I agree with you that it’s generally a topic just as a service publish um judgments or major judgments um but it becomes a procedural
Issue when the data that is published is used in the process of generating it a judgment for example if we start to use um artificial intelligence to structure proceedings to um make draft decisions then we have a procedural issue um I just want to to make this point but I
Totally with you that the simple publication is not the issue of procedural guarantees I have Felix wil um as in the online room with the comments yes hello I hope you can hear me uh I’m cannot quite well brag as Professor NOA did that I’m in the
Hospital but I’m in my kitchen right now because I have to watch my two daughters at the same time so I apologize if the sound is any uh is not okay uh good to see everybody uh I’m very happy to be a part of this via Zoom uh thank you for
The opportunity I have a very basic question but of course it’s very broad at the same time um with all these differences at the national levels at least for the European member states is there any role for the European Union in this um because we do have European
Union influences of course you talked about a lot about the fundamental rights and article six of the convention um so we have at least something on the European level um we can of course talk about the chart of fundamental Rights Article 47 when we talk about article six of the convention
Um maybe there is even something to be said for um the uh the so-called procedural autonomy and uh the its limits Pi maybe Effectiveness if we’re talking about consumer rights and maybe uh effective enforcement of consumer rights and civil proceedings means certain digitized tools that must be
Available at some point so I you know this is just a very uh very again a very broad question just some very um initial thoughts on this but as somebody who’s very interested in European civil procedure I felt obliged to touch upon this European Dimension and if you have
Any input I would very much appreciate it thank you very much thank you very much for the question does anybody yeah I know um um there is an ongoing Eli project on um digitization of of civil proceedings so so we’ll see what comes out of that but um um one and a half
Years ago I was talking at a conference in Poland and uh then uh some of the colleagues there talked about this problem with if you record what’s been said during the proceedings that somebody then probably Administration might break into it and then use it against you so uh and that’s sort of the
Fundamental difference that I realize how naive I was uh to trusting that if we have made these recordings that forance in weed that they’re safe there so I think that as much as it could be a nice idea on the European level I think we come from very different starting
Points so I think it would be um overly Broad and lead us uh nowhere so I think it’s better than to do it as a soft law initiative yeah thank you very much um any other remarks on that from um thank you fix it’s a very interesting question uh and I think
There is at least some part of the European influence already uh of course article six as you mentioned already that gives just a a a basic line there’s also there’s a basic line at the same time we do have the concept of procedural autonomy which means that
It’s up to the member states how to deal with these rules themselves so far and still at the other same same time we see as part of the anonymization is there we see how sturg is dealing with anonymization we see how Luxenberg is dealing with they do not deal with it as
Far as far as I know exactly in the same way so you see there’s a difference at that on those sides but I don’t think there will be it will be very likely that we have a European rule on how to deal with all these aspects on the
National levels because that will be left over to the National member State just as as Anna said I think it will be a bit too far reached expect rules on that so far but any ideas very welcome yeah and anyway we have broad approaches I think on EU level to
Connect communication between the member states courts e codex and these are influencing our systems as well so we have a big integration there and um I think a long way to go still to to reach the topic um I have just one comment uh on the um editing uh documents issue so
In Germany we’ve got a project currently a Bavarian and no sexon project on so-called bases document which is a central document that should pre-structure uh the proceeding and I think if one sets it up in the right way then one might be able to track um all the additions made and
Uh uh TR to highlight how the involved um at the moment it’s not um AI based but if it’s AI based we’ll have an additional uh difficulty to to keep track of how the document evolves and um I think it’s it’s an important um important issue to to ensure um the
Evolvement of the document on time scale just to allow the parties to monitor and higher instances to monitor the case proceeding and um otherwise you you lose track and you don’t know what how how the Judgment um um came came to life and um that may maybe it makes makes makes
Feels more difficult yeah yeah I think it’s a very good example thank you for that um for for my argument so I’m pretty much in line with Anna um saying these new developments um POS they force us to rethink these um what is um procedurally necessary and what are our
Procedural issues we have to deal with and we need maybe to rethink one traditional ways of dealing with that um and um and and this example are you Philip that um is what another example where which ill States it very well so if if there is a way of um doing that
And so the authenticity of um the proceedings is guaranteed in that way fine um but given what Anna told us about AI quotation walks yeah this is that is the point where it’s going to be very difficult for you don’t know how I AI actually recomposes those documents
Because that is the the very nature of that um tool that you cannot keep track on that so the of course I’m pretty sure that many of the experts were wow now we have these powerful powerful instrument called Ai and let’s use it for that purpose and on the first side it’s very
Convincing maybe on even on the second side is a very effective and Powerful tool in fact but if they um realize that the the um that it’s a absolute uh precondition that we have the authenticity of the course of proceedings documented guaranteed in which ways soever um then it’s no good
Idea I dare say um to use that tool for that purpose because then the authenticity is just trust Ai and we know don’t know what it’s going into the black box and we don’t know what’s coming out of that and we could do the algorithm because it’s a self-learning
System um so it’s more a statistic um autenticity we get and that is I think not up to what we need for civil procedure or for procedure as in general so um that’s why yeah the question is um what do we need and is that a tool that
Actually serves us to get to that goal um in better way that we just did traditionally but um we we need to know what the what the goal is and what the um the task that to be fulfilled is in order to can to be able to judge whether
This is a good tool or not you did you said it you know what is coming out it’s [Laughter] salami yeah thank you f for for um putting emphasis on on this topic and I think um that’s that’s also a position I I’m arguing all the time um that we
Shouldn’t use digitalization instruments just because they are new and fancy and digital um digitalization in civil procedure must serve the process and must serve the fundamental guarantees of the process now that’s the starting point the starting point is process and and the functions of of civil procedure
And when we depart from that point and and start digital using digital tools to facilitate the goals of the process then we are on the right okay um are there any questions or comments just looking at the YouTube chat there are no remarks okay then um uh let’s say thank
You for to the Pres presentations on the screen online and here in the room thank you very much for your excellent presentations and the insights to the developments in the countries and in general help me coach civil procedure um I really enjoyed um um coming together
Here in gutan and to welcome you as International guests here at the faculty it’s a Pity that uh Thomas and Mr nor you couldn’t come to gting and and this basically is another example for focus focus argument uh that the structure of the whole thing changes
When we go on so um I would love to welcome you here next time um so we’ll follow up with colloquium on comparative issues in the future I have to uh mention now what Philip hmon has kindly put up uh on the screen which is our new
Um volume on these colloquia um you can buy it for sure onl in the online shop of the University publisher but you also can exit it on online open access without any um any cost so we provide that for you there’s a QR code you can
Scan and then you can directly uh enter um let’s also forecast to the next colloquium which takes place on the 2nd of February when if I right right recall we are coming together merely online now so we don’t change the structure of a colloquium uh entirely we we keep with
The flow we normally have we’ve got interesting speakers here we’re talking about the future of civil procedure in Germany with regard especially to strong um strong competitors in inverted marks because I don’t think the Civil proess should compete with these Accord compete um for for claimants um I
Think we’re we’re talking about the future of civil procedure with regard to especially legal Tech institutions that um address small claims um like flight right or Connie we used to um to regains legally and we will talk about um um alternative dispute resolutions especially um arbitration proceedings we
Have got we’ve got a excellent presenters we’ve got Stephanie OT who’s the president of the the high Regional Court in C and um one of the key experts in the field from the practitioner side we’ve got CH Pao sa a good friend of mine who’s working at the German um institution of
Arbitration instit and we’ve got malinger from the the minor Recovery Services Group um so we’re really looking forward to it if you haven’t um joined uh the the event already online please do it if you’re interested in it you can do that on www.u uh uh I don’t spell it out now it
Takes too long thank you very much and all the best for tonight have a nice evening thank you very much for joining this event uh best wishes to grats and uh y I think um I don’t know where you are exactly at the moment um greetings to the hospital at least and
Um see you next time in Byebye