The recent lockdown due to COVID-19 has significantly limited access to one of the essential public services that businesses need – court services. This happened in a system already overburdened by caseload and critiqued for its limited accessibility because of high costs, lengthy court proceedings, and high complexity making it difficult for businesses, and small and medium-sized enterprises (SMEs) in particular, to effectively defend their rights and interests.
In an Enterprise Survey conducted by the EBRD, the European Investment Bank and the World Bank Group, 17% of the firms reported that courts are a “major” or “very severe” obstacle to their operation. Costs associated with court proceedings are one of the most significant barriers for SMEs. The EU Eurobarometer reported that, while 51% of large enterprises reported that costs of court proceedings are satisfactory, only 24% of SMEs did so (European Commission (2012), ‘Business-to-Business Alternative Dispute Resolution in the EU’, Flash Eurobarometer 347.) The data are alarming as SMEs amount to 99% of the entire business community in the EU and represent the largest business community in EBRD countries of operation (CoOs).
The point of departure for the proposed Project is that the existing modus operandi of the judiciary does not meet the needs of those who seek justice, in particular the SMEs. In addition, SMEs have been significantly affected by the pandemic. Before there was COVID-19, a number of jurisdictions have created successful online courts specialising in resolution of civil and commercial matters including the UK, Canada, US, Australia and Singapore. Online courts meaning a dispute resolution proceeding conducted by default online, starting from claim submission and ending with the delivery of judgement, accessible directly to litigants and their representatives and augmented by services and tools to ease access to justice and litigant participation.
In May 2020, the Legal Transition Team (LTT) conducted a survey among 20 EBRD CoOs (Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Georgia, Jordan, Kazakhstan, Kyrgyzstan, Moldova, Mongolia, Montenegro, Morocco, Romania, Serbia, Tajikistan, Tunisia, Turkey, Ukraine, Uzbekistan.) to obtain information about the most recent developments in their court digitalisation processes. The information was provided by law firms. The questions focused on the risk of postponement and backlogs amid COVID-19, the availability of a case management system for courts and online information system available to litigants and attorneys, as well as the use of remote hearings by courts. The findings from the survey were used to then draft and circulate a discussion paper, which provides a brief overview of existing best practice in several jurisdictions, as well as key challenges that other jurisdictions should be aware of before establishing online courts. In October, EBRD organized a webinar with keynote speakers from the UK, Canada, Estonia, and Ukraine to discuss the experience and lessons learned from the process of establishing online courts.
The Project will build on the above-mentioned activities in order to assist EBRD CoOs in Western Balkans, Eastern Europe and Caucasus, as well as Central Asia in developing online courts for small claims. The Projects consists of two components, that will be implemented in a staged approach:
Component 1 – Cross-Regional Court Performance Assessment, which aims to define a set of performance indicators and standards for commercial and online courts. Based on such indicators, an assessment of the current status of commercial courts in selected jurisdictions in Eastern Europe, Central Asia and Western Balkans will take place. The next step will be to test the indicators in two jurisdictions and then roll out the assessment to another eight jurisdictions. Preliminary research on online courts and international practices related to their development was conducted by the EBRD and can be found in the Documents section here.
Component 2 – Online Court Development, which aims to gradually implement online courts for small claims in selected CoOs, based on an initial piloting in one jurisdiction (tentatively, Ukraine) and then rolled out to selected jurisdictions in Eastern Europe, Central Asia and Western Balkans. The success of the pilot online court for small claims is expected to be a pre-requisite for the roll out of the initiative to other countries and building on its replicability.
The Project implementation will involve active consultations with the relevant country authorities, including the Ministries of Justice, the E-Governance Agencies, Bar Associations, Judicial Councils/Councils of Magistracy or other relevant institutions.
The Project will be led by LTT in close coordination with the IT Insight and Innovation Team, Governance & Political Affairs and Corporate Strategy.
Further information regarding the EBRD’s approach to measuring transition impact is available here.
Procurement notice for this technical assistance project is published on EBRD’s electronic procurement platform SMART by GEP. Please access procurement notice №PR001982 “Regional: Cross-Regional Court Performance Assessment” for more information and to make an application.
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