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The Legal Framework For The Digitization Of Judicial Activities

July 04, 2021

Judicial practice demands strict procedural order as provided by law, so any change, including digitization, would require an appropriate legal framework.

General trends in the world

It was not after COVID-19 that digitization was "explored". It has long been approached and tested; however, only when a pandemic breaks out and the do-or-die situation arises does the process accelerate and diversify.

To be effective, digitization should be done simultaneously; nonetheless, digitization in the legal field faces many difficulties due to specific features of the industry.

Evaluating the completion of the online mechanisms in proceedings, Attorney Chau Huy Quang, Partner at Rajah & Tann LCT Lawyers, Arbitrator at Vietnam International Arbitration Center (VIAC) stated that, in the present and future context, the demand for the digitized legal procedures in Vietnam is inevitable.

From other countries’ experiences, many nations have applied digitization in legal proceedings. In the US, Online Dispute Resolution (ODR) is deployed to resolve simple disputes such as traffic violations, small claims, and marriage or family-related disputes. This mechanism allows the litigants to file and settle disputes completely online.

The French court uses the E-Barreau system in which the parties can access data related to the legal proceedings. Video conferencing has been applied in a number of criminal cases, helping to minimize costs and manpower and limit risks in the process of transferring the accused.

It is also more commonly used in cross-border trade and investment dispute resolution hearings, making it convenient to conduct expert and witness hearings in different state members of the European Union.

In Germany, filing a lawsuit can be done via the government's e-government system or a secured court’s email or fax.

The Singapore court also allows litigants and their lawyers to file complaints via an online system, using personally registered accounts for lawyers working for law firms within the country. Courts review complaints and court fees paid online and respond via said digital account.

For individuals, filing lawsuits and tracking updates on legal procedures would be done through accounts created by the government for Singaporean citizens.

In addition to the court, many arbitration centers have also issued sets of regulations on accepting and resolving disputes online to make the arbitration proceedings faster and more accurate.

Last April, the International Chamber of Commerce (ICC) also issued guidelines for solutions to international arbitration issues in the context of an epidemic, covering guidance for arbitrators as well as the parties on how to handle arising situations (including prioritizing which matters to be resolved first, adjusting the process of direct evidence examination, providing forms of agreement on online resolution), and facilitating proceedings via online methods to avoid disruption of arbitration.

The legal framework of "Digital transformation" in Vietnam’s civil procedure

Article 190 of the 2015 Civil Procedure Code indicates that parties are allowed to initiate a lawsuit online via the court’s online portal. Article 191 also provides the way in which applications are received, processed and results are announced to applicants via the portal.

However, up to now, apart from accepting petitions filed by registered mail, online filing has not been commonplace in the judicial bodies of Vietnam.

The delivery of procedural documents and summons via electronic means are not accepted by the courts of all levels, even at the request of the involved parties. Online filing is currently available on the Supreme People's Court website (https://nopdonkhoikien.toaan.gov.vn/), and the applicant must have an electronic signature, however, it is not a well-known form of transaction in the judicial bodies.

In fact, recently, a number of courts and judges who, in addition to direct service or mail, have also sent legal proceedings by email at the request of the involved parties, to speed up resolution.

However, this is only a flexible and supplementary treatment for specific cases. It is, unofficial and not widely applied in court proceedings or arbitration. Almost always throughout the proceedings, which includes case acceptance, mediation, trial preparation, and trial, the presence of the litigant or lawyer is mandatory.

It is necessary to accelerate the "digitization" of the law industry

To reduce the pressure on the trial process and facilitate resolution, Vietnam can apply the "electronic litigation” of Singapore or Germany.

Law-practicing organizations are provided with online accounts to file lawsuits and track the case handling status. An online court can also reduce time by providing litigants and lawyers many ways to participate in the proceedings without having to be present at all times.

For online filing, a court may consider granting accounts through prefix security, rather than adopting a public digital signature, thereby enabling more people to gain access to e-litigation.

Similarly, arbitration centers can also invest in facilities and information technology infrastructure to conduct e-arbitration, particularly in an environment where an in-person meeting is restricted at present

The organization of online sessions and hearings in courts and arbitration requires appropriate facilities. Specifically, the camera system, broadcast receiver, and Internet connection are stable. In addition, the court and judicial institutions should have a specific software system to ensure the confidentiality of information and avoid disruption. In addition, there should also be specific regulations on the minimum facilities of litigants who request to participate in online trials.

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