1. The Covid-19 pandemic has triggered a broadening of remote or virtual hearings. Before the public health crisis, one could speak less about remote hearings being conducted in standard civil cases than occasional remote examinations of witnesses, which were allowed as a last-resort alternative in exceptional circumstances. As the crisis lengthened, the prospect of an indefinite adjournment of civil proceedings prompted the courts and the legal communities at large to take reasonable steps to facilitate and allow for the conduct of remote hearings, as a whole. This phenomenon triggered a big momentum for a transition towards a new shape of justice, to be completely delivered online.
2. Indeed, the use of IT in court proceedings has been thus far mainly limited to specific moments or activities: service of documents, filing of submissions, hearing experts or witnesses online, creating electronic files and accessing them at any moment by the parties are good examples of this piecemeal approach to digitization of justice.
3. But this approach assumed the structure of a (civil) procedure designed to be managed face to face and by courts located in brick and mortar buildings, which can be physically visited and where the key part of any process, the trial, should be carried out as the place and time where the parties meet before the judge/s to formulate their pleadings and take evidence, that is, as a way of providing the court with the elements on which it will, in turn, have to make its decision.
4. The advent of virtual trials has been completely disruptive, as it has served to prove how it is possible that the core of proceedings can be fully developed remotely, without the need for the parties and the court to meet face to face and in the same place. Their generalization has prompted discussion and concern in regard to specific aspects of their content – ie, what is done in a virtual manner, especially in regard to the credibility of witnesses or the quality of judicial immediacy, which could in turn infringe the right to a fair trial. There is a fear that virtual hearings may have a negative impact on the adequate reconstruction of the facts, that ensures that quality decisions continue to be handed down. These concerns are of paramount importance and must be addressed. But we should be even more concerned about the implications of breaking the taboo of the face-to-face oral trial as a key element of a good administration of justice, of a well-designed process.
   Indeed, once this ‘dam of containment’ has been broken, the way is paved towards a total dematerialization of proceedings through their complete digitalization. This is the challenge facing judicial systems for the future. Talking about online courts does not only mean a change in the way court proceedings are handled; moreover, it has the potential to bring about major changes in the way justice and the role of the courts are conceived. The very recent emergence of (generative) artificial intelligence, with increasingly developed applications in the legal field, is contributing to this, forcing a reconsideration of the role of lawyers, but also of the way in which judicial decisions are to be reached.
5. This chapter is therefore divided into two parts. The first part analyses the first of the steps described above, ie, the generalization of remote hearings, as a transition point towards online justice. At this stage, it is possible to make a diagnosis of the situation and, above all, an analysis of the main challenges posed by virtual trials. In the second part, the analysis will focus on online courts, understood as those capable of developing entirely dematerialized proceedings. This is a constantly evolving subject, where projects and initiatives are continuously emerging. There is no doubt, therefore, that between the time these lines are written and the time they are read, changes and improvements will have continued to take place. The purpose, therefore, will focus above all on raising the structural challenges, especially in terms of rights and safeguards, that this new way of conceiving justice will entail.

Part I
Remote Hearings: The Transition towards a New Shape of Civil Justice

1 When (Health) Need Meets (Budgetary) Convenience

6. The option for virtual or remote hearings was one of the most visible measures taken in many countries to react to the COVID-19 health emergency and fostered a tendency to generalize the digital format for the development of oral proceedings in many national legal systems.^[1] By doing so, it also put back on the table the ‘classical’ debate about the weight of orality in civil proceedings and, with it, about the meaning of immediacy.
7. Indeed, from a rather ‘resilient’ approach, it is often said that the crisis caused by the pandemic is providing an opportunity to improve Justice, which must come hand in hand with new technologies, which in turn have become a lifeline in times of restrictions on mobility and on the gathering of people.^[2] The pandemic – it is often said – may end up serving to promote a digital transformation of the administration of justice which, without the revulsive of the health crisis, would perhaps still be perceived as a mere wish difficult to achieve.^[3]
8. Remote hearings, which have become commonplace in the last four years,^[4] are the most recognizable part of this transformation and the proof that a sort of ‘new modernity’ is trying to make its way into civil justice. It should not be forgotten, in this regard, that when the pandemic broke out, civil justice systems in much of the world were immersed in a crisis of identity and, above all, of efficiency: they were faced with the need to ensure access to justice for large numbers of cases, but with limited resources and higher quality requirements.
9. On the other hand, a good part of the national civil procedural systems give special value to orality and, with it, to immediacy;^[5] and they do so because both are perceived as tools to place the judge – singularly, the first instance judge – in the best conditions to give the best possible judgment.^[6] 
10. Civil proceedings are now in crisis; probably they have always been in crisis – it may be unavoidable, due to their social and political function. The landmark of the current situation is efficiency: how shall the state manage to provide for dispute resolution in times of increased needs to access and reduced budgetary availability? In this context, it is common to hear that orality – at least in its most traditional sense – and efficiency do not necessarily go hand in hand.^[7] The paradigm in this regard seems to be changing: proposals that advocate the construction of comprehensive systems for the resolution of private disputes based on the notions of efficiency and proportionality have been predominant for some time now. States must design − and economically sustain − systems that allow the settlement of disputes seeking a balance between cost, duration and quality, resolving the tensions between these variables with criteria of proportionality − to the detriment, if appropriate, of orality and with an almost blind trust in the digital revolution as a tool to obtain the ‘squaring of the circle’.
11. The greater and more effective incorporation of information and communication technologies into judicial activity is a recurring mantra that cannot be rejected as such, since it is the result of an obvious observation: certain technological tools significantly improve the efficiency of the management of complex procedures and activities of all kinds. And, of course, this is an issue that has been of concern to legislators and public sector managers for quite some time now.^[8] But it is also important to determine its limits, especially from the perspective of basic procedural safeguards. The transition from ‘traditional orality’ to ‘digital orality’ can be a good sample to see how far we are willing to go for the sake of efficiency.

2 The Explosion of Virtual Hearings for Emergency Health Needs

12. When the COVID-19 pandemic broke out, the first reactions were drastic: in line with the general objective of curbing contagion through strict lockdown, legislators and national governments suspended and interrupted procedural deadlines – except for certain cases – with the consequent de facto paralyzation of judicial activity:^[9] scheduled hearings and trials were postponed, without it being easy to determine the new date on which they would be held or resumed; judicial buildings and offices were closed to the public; and a large number of court staff had to remain at home, without being able to implement work-from-home tools quickly and easily.
13. This paralysis, however, was not sustainable: jurisdictional activity could not be put on hold, given its constitutional significance and its social function in times of crisis; from a more pragmatic point of view, neither could the congestion it caused be tolerated. In a rather ‘artisanal’ way, most courts tried to gradually recover their activity, on many occasions based on good will and procedural improvisation. In this context, certain urgent procedural actions requiring oral proceedings began to be carried out by videoconference.
14. This opened the way for the use of remote hearings as an ‘emergency functional equivalent’, which made it possible to reconcile the need for an operative administration of justice, the protection of health – individual and collective – and respect for the oral form and immediacy, legally required for the development of certain procedural acts. The notion of ‘remote presence’ also emerged, referring to participation in the process through a videoconference platform that allows the simultaneous participation of all the protagonists by means of an internet connection. This was a generalized trend in the comparative panorama – from the beginning, in most developed countries and later in others which, trusting in a shorter duration of the emergency situation, had opted at the beginning of the lockdown to convert oral proceedings into written ones.^[10] 
15. In a general panorama of health exceptionality, remote hearings operated as the functional equivalent of many oral acts regulated by procedural legislations in a ‘traditional’/face-to-face manner. Remote hearings were resorted to for reasons of necessity, as they were considered preferable to the paralysis or to the holding in writing of oral proceedings − eg, replacing the oral testimony of a witness with written affidavits or statements, or refraining from cross-examination of experts – and, thus, just reading their reports.
16. Both in the toughest periods of lockdown and in more relaxed moments, a very large number of civil procedural activity was carried out through these channels, especially preliminary hearings or procedural management hearings, but also trials in simple and/or repetitive cases. In fact, in a scenario of progressive de-escalation, ‘hybrid’ formats became equally common, with some subjects intervening remotely – some of the parties, witnesses, experts – and others present with the court in the courtroom.^[11]
17. However, it is convenient to insist on this notion of functional equivalence: it is a way of proceeding that produces similar effects to that which it replaces, but which is not identical to it.
18. It is also important to bear in mind that this pandemic recourse to remote or virtual hearings had to be done hastily, in many cases through exceptional regulatory solutions, which addressed in a fragmentary and unequal manner a series of particularly relevant matters, such as (i) the technical availability, as a conditioning factor; (ii) the powers of the judge and the parties regarding their use; or (iii) the existence of limits or red lines. Their possible ‘standardization’ in the future, however, cannot be done either on the same basis or in the same terms.

3 Subsistence and Generalization of Virtual Hearings after the Pandemic for Reasons of Efficiency: Remote Orality and Digital Immediacy

19. As the health emergency situation continued, but also as it eased, what was initially exceptional was normalized and the possibility of remote hearings becoming a regular feature of judicial proceedings clearly emerged. This is a clear trend in most national civil procedural systems.^[12] In fact, it is also the European Union’s approach. Before the pandemic, the possibility of videoconferencing was already envisaged in some instruments of judicial cooperation, both civil and criminal, but rather as an alternative, somewhat ‘exotic’ option.^[13] The post-pandemic approach is now much more determined and is evident in Regulation 2023/2844 on the digitalization of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, which insists on the standardization of the use of videoconferencing by parties who have to participate in legal proceedings concerning them and to be held in other Member States.^[14]
20. It should be borne in mind, in this regard, that all oral acts − and certainly the most substantial ones − are in the abstract susceptible of being held remotely: in most cases, therefore, oral proceedings could be imagined, at least in the abstract, in a face-to-face, virtual or hybrid format.
21. In fact, many judges^[15] and lawyers assess positively the virtual format of oral acts during the years of the pandemic and afterwards, especially preliminary and equivalent hearings, because it allows them to better manage their time: there are still waits, but there is no feeling of ‘having wasted a morning’ when these waits are endured in the office itself, working on other matters. The greatest reluctance is, of course, with respect to procedural acts involving evidentiary activity.^[16] It is perceived, although it is difficult to verbalize the reasons, that oral proceedings in virtual format do not provide the same ‘added value’ as face-to-face oral acts, especially when it is a question of acts on whose content the making of relevant decisions for the parties depends.
22. The conclusion is thus reached – or, perhaps, it is just a mere intuition –^[17] that the remote holding of a hearing may affect essential procedural principles associated with the legal option for orality, particularly immediacy and publicity. But it is also difficult to clearly establish the limits imposed by the need to abide to these principles. A legislative commitment to generalizing and/or mainstreaming remote hearings − including virtual trials and main hearings − should not be made without reflecting on these issues. The use of adjectives to qualify substantives that have hitherto had a clear content is usually an indication that a change has taken or is taking place to some extent. And this is what happens when, instead of orality, we speak of ‘remote’ orality; or when, together with immediacy – pure and simple –, ‘digital immediacy’ appears. Language is not innocent, and it is therefore legitimate to ask to what extent the changes brought about by online trials (will) affect the quality of justice and the rights of the parties involved. Even more so when virtual trials are being the lever for the transition towards a completely digital justice system.
23. When they came into use at the beginning of the pandemic, remote hearings were intended to circumvent the restrictions to the mobility of citizens and legal professionals during periods of lockdown and, in general, to avoid the concentration of people in closed places for a prolonged period of time. They were therefore legitimized, at least primarily, on public health grounds. Obviously, there were underlying reasons of effectiveness and efficiency: they were the way to avoid a collapse of the administration of justice due to paralysis. The progressive overcoming of the pandemic and the easing of restrictive measures brought a shift or reversal in the rationale for remote hearings: the need to preserve health takes second place – and eventually vanishes – while efficiency is enshrined as an element with sufficient virtuality to legitimize them in a post-pandemic scenario − and speediness of proceedings should be included as one of the ingredients of efficiency.
24. In addition to efficiency, there is another relevant ground to justify a generalization of virtual hearings: sustainability and the contribution to the fight against climate change − ie, compliance with the 2030 agenda for sustainable development. When hearings are held remotely participants do not have to travel to court and this – especially when trips with private vehicles are avoided – may certainly lead to a reduction in CO2 emissions.^[18]
25. In any case, all of them are valid aims: preserving public health is more than acceptable, but it is also legitimate in the abstract to sustain a procedural change on the objective of promoting the efficiency of the administration of justice; it has been said before that this has been, since the beginning of the millennium, the sign of the times in procedural matters. And the same can be said, without the need for special justifications, with regard to the now added purpose of contributing to the fight for sustainability and against climate change.^[19]
26. It is being the lawmaker’s task to establish the criteria or valid reasons for choosing one or the other modality of holding an oral act. On that legal basis, of course, the choice of one or the other will correspond in each specific case to the courts, whether the general rule by default is the face-to-face celebration or the remote one. In times of pandemic, the most frequent rule has been that the judge’s decision, not necessarily reasoned, could be sufficient for the virtual format to be appropriate. But, of course, it is questionable whether it is reasonable for things to be this way when the basis is no longer the protection of public health. For the future, therefore, the challenge is to determine whether efficiency and sustainability justify a recourse to remote hearings that is not subject to further limits. To this end, it is necessary to take into account the other values with which ‘virtual’ orality may collide and which should be weighed up, both by the lawmaker – at a general level – and by the court in each particular case.
27. It is indeed possible to conclude that remote trials may be considered of lower quality: and a lower quality of the trial may lead to a lower quality of the judicial decision − which is what really matters. From an efficiency perspective, however, one could counter-argue that remote trials, at least for certain categories of litigation, are ‘the most that the system can offer’ in terms of orality and ‘day-in-court’. In such a case, one would have to recognize that they would not be of ‘inferior’ or ‘lower’ quality,^[20] as there would be no better real alternative to compare them with. This can − and often is − the reasoning behind proposals to generalize virtual trials, at least for repetitive litigation of lower intensity. However, before drawing any further conclusions, it is useful to analyse what are the drawbacks of virtual trials and what, if any, are the ways to correct them.
28. The generalization of remote hearings that many jurisdictions are currently experiencing tends to be justified on grounds of efficiency and, as just noted, sustainability. Of course, these are not the only arguments for a court to agree, in a specific case, to hold a virtual hearing or, at least, the remote participation of one of the parties or a person who must intervene at the proceedings (a witness, an expert). Thus, in some systems, it is possible for persons who are in prison or even abroad – but prefer not to travel – to participate in this way. In this type of situation, the legal debate is different, as it is not a question of analysing in the abstract the advantages and disadvantages of a system of justice based on physical or virtual presence, but of promoting in the specific case the best option for the person concerned in the light of the circumstances of the specific case.
29. A good example of this is provided by the judgment of the European Court of Human Rights in Jallow v Norway^[21]. It was a case concerning parental responsibility for a child living in Norway, lodged before Norwegian courts by the child’s father, a Gambian national living in Gambia, after the mother’s death, and against the child’s aunt. For reasons of immigration control, the father was not granted a visa to enter Norway to attend the hearing and the Norwegian court eventually decided that he would participate via Skype, his lawyer nevertheless being present in the courtroom; the other alternative would have been to postpone the case for an indefinite period and with no solution in view – the immigration authority refusal was final. Before the Strasbourg Court, Mr Jallow alleged that he had not had a fair procedure, since he had not been allowed to appear in person, suffering a clear disadvantage vis-à-vis the other party and, more generally, by the remote presence itself. From the outset, at 64, the ECtHR recalled its doctrine, according to which ‘the appearances by video-link are as such not necessarily problematic, as long as this measure in any given case serves a legitimate aim and that the arrangements are compatible with the requirement for due process’.^[22] Assessing the specific circumstances of the case at hand, the ECtHR considered that there might have been two relevant obstacles, one regarding the assistance by a lawyer and the other linked to potential technical difficulties during the videoconference. The Court came eventually to the conclusion that the presence of the lawyer at the hearing, along with the possibility of the applicant to prepare the case in advance with the lawyer, had been sufficient; as to the second, no real difficulties had impaired a reasonable holding of the hearing.
30. As can be seen, many of the elements to consider when assessing whether in a particular case, remote intervention is an admissible functional equivalent are also relevant when deciding on the generalization of virtual hearings, ie, without the need to take into account the circumstances of each individual case. Technical difficulties and assistance by a lawyer, explicitly stressed in Jallow v Norway, are proof of this; they are not, however, the only ones.

4 Technical Constraints, Digital Gap and Access to Justice

31. Technical constraints are among the most visible drawbacks of virtual trials, from at least three different points of view: a properly functioning technology, duly equipped courts, and digitally competent participants.

4.1 Properly Functioning Technology

32. There is, of course, the more technical dimension of the phenomenon, which requires a smooth functioning of the system to be really performing, ensuring proper participation.^[23] It is frequent to find criticism of the poor quality of videoconferencing systems as such, which do not always allow an adequate viewing of the participants. For example, a camera sometimes focuses statically on the table where the court sits from a distance that is insufficient to really see the faces of the acting judges.
33. On the other hand, unexpected system failures are more common than desirable. Most readers will probably still have in mind, during the post-Covid-19 restrictions period, the widespread news of the US-lawyer unable to remove a Zoom-filter and claiming not to be a cat in the context of a remote hearing before the 394th District Court of Texas.^[24] But, aside from anecdotal situations, it is not unusual for the connection to be lost, for the sound quality to be poor, for the image to freeze, for the meeting not to have been properly recorded (if it had to be). It is not easy to say that, in these cases, the hearing is carried out ‘normally’, ie, with full safeguards for the participants. In this vein, it is interesting to read the findings of the report carried out in the United Kingdom during and shortly after the pandemic, describing many sorts of technical issues during remote hearings.^[25]
34. In principle, as far as a pure technical dimension is concerned, only improvements and progress can be expected. But failures should not be excluded, and procedural rules should be introduced that specifically address the consequences of a technically defective conduct of a virtual hearing – which may include, of course, the need to repeat it, retaking the evidentiary examination, if necessary.

4.2 Duly Equipped Courts

35. The widespread use of virtual hearings is subject to the availability of the necessary technical means for the courts and the litigants. From the point of view of the courts, the availability of the appropriate means is a condition in the strict sense of the term, on which the real possibility of complying with what the legislator may have envisaged depends. In India, for instance, the criticism was drawn that courts do not have the proper infrastructure to move online, both on the hardware and the software side,^[26] something that has been emphasized by the Supreme Court.^[27] But also more developed countries endure similar concerns: this was, indeed, part of the discussion in Germany, triggered during the legislative process to approve the Act to Promote the Use of Video Conferencing Technology in Civil and Specialist Jurisdictions.^[28]
36. During the pandemic, in fact, the use of remote hearings, as the visible face of the ‘technological solution’ to the emergency, showed in most countries to what extent sufficient progress had or had not been made in the digitization of justice. After all, for this ‘functional emergency equivalent’ to be possible and useful, it was necessary for the system as a whole to be already operational beforehand with digital schemes. In this vein, countries like Norway, Finland, England or Australia reported a very fluid transition into the digital format, thanks to the previous developments.^[29] The experience in Denmark was apparently paradoxical: previous digitization of justice allowed courts to work on an electronic basis almost immediately, although this did not reach main hearings, which were postponed instead of being held remotely.^[30] Surprisingly, German courts did not experience a clear shift into the use of ICTs.^[31]
37. Apart from the dynamics associated with the pandemic, but still in relation to this aspect of the technological equipment of the courts, two different approaches can be detected. On the one hand, there are those systems that are committed to incorporating those technologies that are available at any time and place. An example is provided by the ELI/UNIDROIT Model European Rules of Civil Procedure, the result of academic and practical efforts to reach a sort of codification of civil procedure in Europe under a ‘best rule approach’, showing the architecture of what could be considered fair and efficient proceedings.^[32] Rule 18(4), under the heading of ‘Oral and Written Proceeding’ states as follows: ‘In so far as appropriate, proceedings may be conducted using any available means of information and communication technology’ (emphasis added). As the official comments to this rule underline, it is considered desirable that ICT means that already exist should be made available to the courts, so that they can use them in the management of the proceedings.^[33] It is therefore an approach that creates a duty on governments to make available to the courts the technological means available at any given time, depending on their evolution. Of course, the Model Rules avoid making explicit financial commitments in procedural laws: what is considered reasonable – courts should have adequate ICT means – is stated, although it is assumed that, depending on the place and the period of time, the reality may be different.
38. But it is also frequent to find national rules that allude to the possibility of certain proceedings being carried out remotely ‘provided that the court has the appropriate means at its disposal’ or similar expressions.^[34] These approaches carry the danger of conformism and wishful thinking: ICTs can be used by those who already have them, but there does not seem to be a commitment to provide them to those who do not.
39. In a different vein, it should be understood that the reference to ‘adequate means’ also covers personal means: judges and other court staff must be in a position to adequately manage the resources at their service – in what matters to us now, the tools for the management of virtual hearings. For this reason, it will be necessary to provide adequate training for these persons, the financing of which must also be provided by the public authorities.

4.3 Litigants Able to Access ICT and to Manage Themselves Properly in Technological Environments

40. The analysis, however, is different from the perspective of the litigants. For them, whether or not to have the necessary technical means to act remotely is not only a constraint but may affect their access to justice.^[35] 
41. The problem may be seen as secondary when it comes to proceedings in which the assistance of a lawyer is mandatory: lawyers are presumed to be in the possession of the appropriate equipment and, in fact, it would be reasonable for professional standards to oblige them to acquire and update digital skills. Indeed, an extension of the use of ICT systems in the judicial sphere must go hand in hand with increased competence of the lawyers who have to assist the parties.^[36] Consequently, the duties of lawyers must be strengthened when dealing with this type of environment and, to that extent, we could even talk about the right to a ‘technologically competent lawyer’, which is reflected in the requirements imposed by professional associations for access to the profession, as is happening in the United States, where in more and more states technological competence is being imposed among the obligations of members;^[37] the issue, of course, is discussed as well in many other jurisdictions.^[38]
42. In addition, in many jurisdictions the scope of self-representation is still very wide, and the digital gap may compromise the access to justice of those who would be expected to intervene remotely without having the appropriate means. Challenges triggered by the digital gap are recurrently highlighted in connection to remote hearings, a problem which will undoubtedly be aggravated by their generalization.^[39] If they are expected to participate in a remote hearing, litigants in person need to have computer equipment, an internet connection and a minimum level of skill in the use of videoconferencing tools; indeed, litigants should have these means also if they are assisted by a lawyer if they want to have some independence and/or are not able to attend the meeting from their lawyer’s premises.
43. Many citizens in developed countries take this availability for granted, but these requirements can be a real obstacle to access to justice in developing countries^[40] and, more generally, for vulnerable people:^[41] not only for those who lack financial resources, but also for those who do not have a minimum of digital literacy.^[42] This is therefore a criticism that can also be made, with all the more reason, in the face of an ultimate full digitization of court proceedings. In fact, this digitization extends to all areas of civil life, not just justice, and this should generate a duty on the part of public authorities to ensure the digital inclusion of all citizens.^[43]
44. The problem became evident during the pandemic and will not disappear with it. It is therefore necessary that national and supranational regulations of virtual hearings take this into account and establish appropriate solutions, either by way of exception – excluding the virtual format and opting for face-to-face proceedings which, in principle, should be virtual –, or by way of assistance – providing the litigant with adequate means to appear remotely, for example through public offices or enabling ad hoc spaces in court buildings, where some expert assistance would be made available – as recently established, for instance, by Spanish law.^[44] 
45. On a partially different level, halfway between technology, the digital divide and the quality of justice, an additional issue can be identified, that of how the participants in a virtual hearing should behave. In some jurisdictions, it has been deemed necessary to adopt guidelines or recommendations regarding decorum and how to behave. In this regard, the guide drawn up in March 2021 by the judges of New York^[45] should be highlighted, because of its simplicity and clearness:

Appropriate decorum/etiquette is a necessity during all virtual court proceedings.

All court proceeding participants shall recognize that this is a formal appearance and should ensure the following:

- Dress in appropriate attire, as if you were appearing in-person in court

- Display an appropriate and professional background

- No consumption of food or drink during the proceeding

- Remain professional and dignified

- As in ln-Person proceedings, only one person should be speaking at a time

Please ensure that judges, court staff, attorneys, and all participants in court proceedings are aware of the importance of the appropriate decorum which is necessary for all virtual court proceedings.

46. These guidelines, as many others approved in other places,^[46] are fully valid and generalizable for a post-pandemic scenario and applicable in any country and before any type of court.
47. The need to adopt such recommendations and guidelines is basically a reminder of the need to reinforce the seriousness of judicial proceedings when they take place online. In this sense, it is also worth referring to the rules established in China’s online courts: the Beijing Internet Court, for example, explains in a video^[47] that in virtual hearings the symbols of the judiciary and the People’s Republic will appear as a background and that, in addition, a sort of robot judge will remind the participants that they are in a judicial, and therefore solemn, context. Similar issues, although more specifically addressed to jury trials, are dealt with in an interesting study/experiment carried out in the United Kingdom,^[48] where judges and lawyers appeared in full court dress and in transition moments participants were reminded of the solemnity of the occasion.
48. Sticking to the old formats, for the time being, is a transitional solution, possibly necessary to preserve the dignity and solemnity of online judicial acts. Nevertheless, the virtual format will eventually lead to the emergence of new rituals or changes to existing ones.^[49] Rituals are strongly associated, among other factors, with the spaces in which they are to take place; and the virtual space is different from a courtroom, so that the way to reinforce the seriousness of the proceedings may not only focus on the manner of dress, or the need to stand up when the judge enters the courtroom, or the presence of a bailiff who can forcibly ensure the peaceful conduct of the session – to give some examples that many readers may draw from their ‘film memory’.

5 Virtual Orality, Efficiency and Relevance of the Matter at Stake: Criminal Justice and Low Intensity Civil Cases

49. Both during the hardest times of the pandemic and in later times it was assumed, at least in some jurisdictions, that certain procedural acts, legally foreseen as oral, were only possible in person, so that they could not be held virtually. The clearest example is provided by criminal justice, where some countries established red lines. By way of example, the legislation that temporarily regulated remote hearings in Spain^[50] established two important exceptions in criminal matters. (1) In trials for serious crimes, the physical presence of the accused and their lawyer is always required; the same applies if the crime is less serious, but the prosecution has requested a prison sentence of more than two years – in this case, the face-to-face hearing is imposed if so requested by the accused or their defence. (2) In addition to the trial itself, the physical presence of the investigated or accused person shall be required, at their own request or that of their counsel, at the hearing to be held to decide on the request for pre-trial detention. These rules do not apply to the prosecuting parties or to those responsible for civil liability, nor do they apply to witnesses and experts who are required to testify.
50. A similar result was reached in France, albeit in a different way. Initially, no limits were placed on the possibility of holding criminal trials virtually. In the face of criticism that due process was being violated, the French Conseil d’État suspended the application of the rule.^[51]
51. The debate surrounding remote trials in criminal matters has been particularly intense in the United States, where its constitutionality has been questioned. The origin of the discussion lies in the Confrontation Clause under the Sixth Amendment, which gives any criminal defendant the right ‘to be confronted with the witnesses against him’. The validity of this clause at the state level, as is well known, was made operative through the Due Process Clause of the Fourteenth Amendment. However, during the pandemic, but also afterwards, the question has arisen as to what extent this constitutionally required confrontation should take place face to face or whether, on the contrary, it can also be satisfied in virtual environments. The impact of virtual trials on the right to counsel has also been questioned, in cases where the virtual format imposes physical separation between the defendant and their lawyer. The right to a public trial has also been put at stake.^[52] 
52. As is common in American doctrine, precedents, including nineteenth century rulings, have been invoked for and against both positions; there have also been court decisions in both directions during the period of lockdown.
53. In any case, and apart from the question of their constitutionality in the strict sense of the term, there are significant reservations about virtual trials in criminal matters, considering that they are of inferior quality for the accused and that they do not allow them to defend themselves in the same way as in face-to-face trials. In this line, it is worth recalling a study coordinated by the Stanford Criminal Justice Center of the Stanford University School of Law, based on both quantitative and qualitative analyses carried out in judicial districts with very diverse characteristics.^[53] The conclusions are devastating in relation to issues such as access to technology (the digital gap is a recurrent issue), the dehumanization of the proceedings (eg, through less attention and less empathy), the difficulties in assessing the credibility and the truthfulness of remote witnesses or the quality of communication between the attorney and the client: and this should trigger reflection before advancing in the path of generalization of remote trials. It has been strongly asserted that ‘making virtual proceedings an option might thus open the courthouse doors wider only to relegate some to the basement’.^[54]
54. At the European Union level, it may not be long before there is a more or less ‘official’ answer from the Court of Justice on this issue, as it has been the subject of a preliminary ruling in relation to the Directives regulating the European Investigation Order^[55] and the presumption of innocence.^[56] 
55. Art 24 of the EIO Directive envisages the possibility that witnesses, experts and suspected or accused persons be heard by videoconference – or other audiovisual transmission – if so requested by the issuing authority. In such cases, in addition to the general grounds for non-recognition or non-enforcement of an EIO, the execution of the EIO in such a manner – ie, by means of videoconference – may be refused if either (a) the suspected or accused person does not consent or (b) the execution of such an investigative measure in a particular case would be contrary to the fundamental principles of the law of the executing State.
56. Specific provisions are additionally set up regarding the way to perform the hearing by videoconference.

(i) The executing authority shall undertake to summon the witness, expert, suspected or accused persons to appear for the hearing in accordance with the rules of the executing State and ensure the identity of the person to be heard.

(ii) The hearing is to be conducted by the issuing authority according to its own law, but the competent authority of the executing State shall be present and ensure both the identity of the person to be heard and respect for the fundamental principles of its law.

(iii) Suspected or accused persons shall be informed in advance of the hearing of the procedural rights which would accrue to them, including the right not to testify, under the law of the executing State and the issuing State. Witnesses and experts may claim the right not to testify which would accrue to them under the law of either the executing or the issuing State and shall be informed about this right in advance of the hearing.

57. Art 8(1) of the Directive on the presumption of innocence enshrines the right to be present at the trial in a very simple and general manner: ‘Member States shall ensure that suspects and accused persons have the right to be present at their trial’. No distinction is made, thus, between ‘physical’ and/or ‘remote/virtual’ presence; the Directive, on a different vein, is concerned with setting limits and conditions to trials in absentia.
58. Within this framework, a Latvian court – the Ekonomisko lietu tiesa – lodged a request for a preliminary ruling^[57] addressing many of the questions that are recurrently at stake when dealing with videoconferencing. First of all, the court asks for clarification on whether the hearing envisaged by the EIO includes the trial in a criminal case; in other words, the question is whether the EIO provisions on videoconferencing are only applicable during the investigative or preliminary phases of civil proceedings or, on the contrary, they may also be used to allow the accused person to participate in their criminal trial. In addition – but not directly depending on the answer to that first question –, the Latvian court asks if the right of accused persons to attend the oral procedure may also be ensured by an accused person participating in the trial in a criminal case taking place in a different Member State by videoconference from that person’s Member State of residence and if participation by an accused person in the trial in a case that takes place in a different Member State by videoconference from the Member State of residence equate to that person’s physical presence at the hearing before the court in the Member State which is hearing the case. Although the cross-cutting issue of the cross-border element is of relevance, the core question remains that of functional equivalence between physical presence and video-participation: the cross-border dimension of the case may demand higher standards (eg, interpreters), but only if it is assumed that voluntary video-participation is admissible.
59. Indeed, the Latvian court goes on to address another crucial issue for the cross-border dimension of virtual hearings, that of the possibility of a court to summon directly a witness, an expert or even an accused person to join a videoconference by sending them the link, without ‘asking permission’ to the authorities of the Member State of residence of the concerned persons: should this be regarded as in invasion of the other State’s sovereignty and, thus, is it mandatory to arrange such a videoconference via the competent authorities of the Member State of the affected person’s residence?^[58] 
60. The answer of the Court of Justice to these relevant issues is still waiting. The Court, nevertheless, has addressed a connected issue: in Sofiyska gradska prokuratura,^[59] the question posed was practically the reverse, ie, whether Art 8(1) of the Directive on the presumption of innocence could preclude an accused person from being able, at his or her express request, to participate in the hearings in his or her trial by videoconference. The Court, however, considered that this precise issue was not governed by the Directive (para 29) and, therefore, limited itself to recalling the general duty of the courts of Member States to guarantee the right to a fair trial.
61. The legal exceptions adopted in some jurisdictions and, more broadly, the discussion on the admissibility of criminal virtual hearings^[60] show the special value that the lawmaker and legal operators recognize to the physical presence of the defendant before the judge conducting the investigation or before the trial court: however much functional equivalence a virtual presence may provide, there is no desire to renounce the direct confrontation between the accused and the judicial body that may end up taking a decision with a serious impact on their personal sphere. It is thus legally recognized that direct interpersonal contact has a value that is difficult to explain, but that can have an impact on the quality of the procedural activity – including the quality of the exercise of the right of defence.
62. It is clear, therefore, how lawmakers and courts have assumed the limitations of remote hearings: in rules and in rulings such as those described above, the legislator and the courts implicitly recognize that they are not the same as ordinary hearings and that they may affect certain basic procedural safeguards.
63. These precautions are exacerbated when the seriousness of what is at stake becomes apparent, hence the clearest example is proceedings with potential consequences on personal liberty. In civil proceedings, freedom is not at stake. But it seems that the importance -social, economic, personal – of what is at stake in a proceeding – also a civil one – is an element of relevance, which should work as a counterweight to mere efficiency^[61]. In complicated cases involving large sums of money, it is difficult to imagine a court preferring a virtual hearing for the trial/main hearing or that this format could be imposed on those who have large sums of money or equivalent benefits at stake in the procedure. The same applies, for example, in family proceedings where the court must hear a child before deciding to whom to award custody or whether there are any valid grounds under the 1980 Hague Convention for refusing an application for the return of a child who has been wrongfully removed or retained.^[62] However, and even within these ‘complicated’, ‘high-value’ or ‘sensitive’ cases, a videoconference will still be a reasonable and proportionate way to hold a preliminary conference between the court and the lawyers in order to decide on some procedural and managerial issues.
64. In this vein, it is frequently heard that, for the sake of efficiency and proportionality, virtual hearings should become the rule for ‘low intensity cases’, ie, for repetitive litigation, cases with a low economic value and/or an apparent low difficulty, either from a factual or a legal perspective. This approach also may justify a more general recourse to virtual hearings for managerial purposes, whereas reluctance should still be justified for main hearings and/or evidentiary hearings to take place online, unless there is a relevant ground to do it.^[63]

6 ‘Virtual Orality’, Immediacy and Quality of Justice: The ‘Added Value’ of Face-to-Face Hearings?

65. The origin of the reticence and caution against the ‘new virtual orality’ is probably to be found in the intuition that it has a negative impact on the principle of immediacy or, if preferred, on the values that are associated to the physical presence of the judges, the parties, the lawyers, the witnesses and the experts in a same room at a same time.
66. A very clear synthesis of this ‘vision’ lays in a Decision of the Vienna Oberlandesdgericht given on 7 July 2024.^[64] In the context of insolvency proceedings, the defendant’s administrator, who resided outside Austria and who was to be cross-examined by the court, requested to do it by videoconference, invoking the Austrian special COVID-19 legislation, in order to avoid the risk of detention – a possibility envisaged by the Austrian insolvency legislation regarding the administrators of the insolvent business, that had been already ordered by the judge, although it had been subsequently revoked by the OLG. The request to proceed by videoconference was rejected in the first instance, on the ground that there was not a real Covid risk nor a detention probability to sustain it. He then lodged the appeal that was decided – and dismissed – by the Vienna Superior Court. Among the legal reasoning of the Court, the following shall be highlighted (para 5.2):

Since the direct impression of the judge is of particular importance in the examination of the parties, the law stipulates that the examination of the party before the adjudicating court is the rule and only allows this evidence to be taken by way of legal assistance in exceptional cases and to a much narrower extent than in the case of witness evidence […]. Video conferences are therefore not generally authorised, but only as a substitute for the taking of evidence by way of legal assistance. In this area, the advantages clearly outweigh the disadvantages, because hearings by way of legal assistance – if they are successful at all – often only provide results that are of little use […].

The law refers to the possibility of questioning using technical equipment for audio and video transmission as ‘direct taking of evidence’, although strictly speaking this does not really apply. Ultimately, the use of video conferencing technology means a compromise between genuine (physical) immediacy and the avoidance of direct impressions. However, if the court takes evidence by means of video conferencing without the legal requirements being met (i.e. if it is not a matter of substituting a legal assistance examination), this constitutes a substantial procedural defect within the meaning of Section 496 (1) Z 2 ZPO due to the violation of the principle of immediacy […].

Strictly speaking, the principles of orality (Section 176 ZPO) and immediacy (Section 276 ZPO) are not breached by the authorization of the hearing by video conference, but they are modified due to the physical distance and the acoustic and visual perception with the aid of technical means of communication. With regard to immediacy, weaknesses of hearings by videoconference are criticised above all in connection with the evidence procedure. The personal impression gained during a face-to-face hearing is of essential importance for the assessment of the hearing and evidence and cannot be gained to the same extent during a video conference. Above all, there is a risk that the video conference distorts interpersonal perceptions and that non-verbal expressive behaviour is lost. In addition, there is the lack of atmosphere in the courtroom and the lack of direct confrontation with the other party, which could hinder the honesty of the parties and thus the establishment of the truth, but at the same time also the amicable settlement of the dispute […]. In addition, when hearing a person connected from outside the court building, for example, there is the problem that it is difficult to avoid influencing them […]

67. According to the classical procedural literature, there is a legal notion of immediacy, which has an unquestionable relevance for the right to effective judicial relief – endorsed, indeed, by the case law of the European Court of Human Rights^[65] – and which is identified with the direct contact of the judge with the parties and the evidence, which must be taken before the judge who has to issue the decision.^[66] This notion of immediacy and this approach have also been assumed by the ELI/UNIDROIT Model European Rules of Civil Procedure and, more specifically, by Rule 64(2), pursuant to which ‘[t]he final hearing must be before the judge or judges who are to give the final judgment’.^[67] 
68. Can it be said that this direct contact also takes place in a virtual context? In my opinion, not entirely, although we are already beginning to speak of ‘digital immediacy’ – and the need to use an adjective is not without significance.
69. In a remote hearing the spoken word is certainly used as a communication tool, discussions, depositions and interrogations are possible, and documents can also be exchanged instantaneously. It is common to point out, however, that in a virtual framework the participants − often referred to as witnesses − are not subject to the environmental and ritual influence typical of oral proceedings^[68] and that the judge may thus be deprived of useful elements for assessing the credibility of the account given.^[69] It has also been said that remote hearings have a negative impact on the adjudicator’s empathy – although it is arguable whether empathy should be relevant or not for a fair decision making.^[70] These assessments are also frequently countered by the argument that orality and immediacy are somehow overvalued because the supposed ‘metadata’ they provide are refutable from a scientific point of view^[71] – judges, according to some, lack adequate training to properly assess the body language of witnesses or the way they speak, for example.^[72] The controversy can be even more intense when it comes to jury trials.^[73]
70. The debate is undoubtedly of the utmost interest, a preferably written or oral model of civil procedure and also from the perspective of the search for efficiency – and that is the leitmotiv that seems to guide legislative action. But it cannot be forgotten that in many systems the legislative option for a predominantly oral model is still in force, which seeks to reinforce the value of personal evidence and increase the options for the parties to place the judge in the best position to construct the factual account that is most in line with reality. This decision of the legislator is influenced by that part of immediacy which is not easily defined, and which derives from the advantages intuitively associated with the notions of meeting and ritual,^[74] of encounter and of direct and immediate contact, without interfering elements.^[75]
71. Opting for orality and immediacy means assuming that direct communication between persons interacting in the same physical space increases the chances that the process will better fulfil its functions, including the consensual resolution of the dispute^[76] − although the lack of direct contact may be advisable in some cases.^[77] Orality, implemented through face-to-face hearings, also influences the social legitimacy of the judicial system:^[78] it gives litigants their ‘day in court’ and increases the perception that the State, through the court, takes the resolution of the specific case seriously – both for litigants who are natural persons^[79] and for the natural persons who are always behind the litigants who are legal entities – securing what has been called as ‘the subjective experience of procedural justice’.^[80] 
72. From this angle, both the screens and the limitations of videoconferencing programs can be seen as instruments that mediatize the contact between the protagonists of the procedural activity at hand and, to that extent, distort the communication required by the process and a hypothetical ‘genuine’ immediacy, only achievable in face-to-face environments. For this reason, the generalization of remote hearings as opposed to ‘traditional’ hearings brings into play two different ways of implementing the interaction between the subjects involved in an oral procedural act. The absence of direct personal contact of remote hearings may not in itself entail a complete breakdown of immediacy and adversarialism, as advocated by the legal option for orality. The procedural activity takes place in any case ‘before’, or ‘in front of’, the court, and it is possible to fully comply with the legal provisions on the content of each procedural act (adversarial debate using the spoken word). However, the feeling inevitably remains that this is an orality of inferior quality, because it determines a diminished immediacy: the screens and programs impose limits on the contact of the court with the parties and other intervening subjects; elements of assessment and context may be lost, which would result in a better quality of oral judicial activity and, ultimately, of the process itself.
73. A good example of an official assumption of these caveats may be found in a 2020 judgment of the Constitutional Court of Chile,^[81] where it had to address to what extent criminal virtual trials – under the exceptional provisions given during the pandemic – were compatible with the constitutional model of oral criminal proceedings. The Constitutional Court expressly stated the following:

In this, the material dimension of immediacy is relativised and degraded by virtual trials, because the transmission by screen and the focus only on the face accompanied by the voice becomes a substitute for the most complete and immediate face-to-face perception, this videoconference mechanism being a kind of ‘telematic mediation in real time’, that can also be called ‘virtual presence’, which in principle is considered to be equivalent to face-to-face presence, but without the elements of face-to-face perception, since not even the field of vision can be the same and it is not possible to perceive whether or not the prohibition on reading scripts is being observed.^[82]

74. It is therefore necessary that a commitment to greater use of remote hearings, aimed at making the system more efficient, takes on board this intrinsic deficit and establishes the appropriate requirements to compensate or mitigate it: what is more easily accepted in times of pandemic – second-rate or low-cost orality and immediacy – must be rigorously subjected to the sieve of the right to a fair trial once health normality is restored. For the future, therefore, it is essential to ensure that all remote hearings meet adequate technical requirements in terms such as the location of the participants’ cameras, the possibility of close visual contact between the interlocutors – ie, the speakers should be able to see the faces and expressions of the listeners up close^[83] –, the existence of a channel for the instantaneous sending of documents while the hearing itself is taking place or the availability of confidential ‘breakout rooms’ for attorney-client conversations. It must also be clear how to prove the identity of the participants, how to ensure data protection, and how to record and preserve information, among other issues. The guides and protocols approved in many countries at the beginning of the pandemic were concerned with these questions, but it seems unavoidable that these requirements should attain true legal/binding status so that real procedural rights and powers should be derived from them, the infringement of which could have legal consequences – eg, a lack of defence with constitutional significance for one of the parties. If the courts are to be given the power to decide and impose the format – virtual or face-to-face – of oral proceedings in the exercise of case management powers, the parties must be given the right to expect the virtual format to meet high-quality standards.
75. The quality of ‘virtual courtrooms’ is therefore a determining factor in the quality of the virtual hearings themselves,^[84] just as the architecture and internal layout of the court buildings themselves have an impact on the justice system:^[85] it is important, for instance, that there are fixed positions for all participants (judge or judges, parties, witnesses), in order to minimize confusion about who is who and what is each one’s role; different cultural traditions, in addition, should lead to diverging settings depending on the jurisdiction. It is clear that, in this respect, improvements can only be expected, through platforms and programs that are progressively better adapted to the needs of the judiciary. But we must insist on the need to understand that these are not merely technical or ancillary issues, which the procedural legislator can disregard, because they have an influence on the environment in which the fundamental right to effective judicial relief is exercised.
76. In any case, it seems to me essential to recall that a possible choice by the legislator in favour of remote hearings – even with their shortcomings – is still a reaffirmation of the value of orality as opposed to writing, even if orality needs to be reconsidered from the perspective of digitalization.^[86] That is why it is so important to regulate them correctly. This is the only way to avoid criticisms that delegitimize them for their lack of usefulness or their low quality, something that in the end would not serve to justify a return to face-to-face hearings, but rather the disappearance of orality itself.^[87]

7 Virtual Hearings and Public Proceedings

77. Beyond immediacy, remote hearings also entail a paradigm shift in terms of publicity.^[88] The court is no longer a physical space where any citizen can go to see how justice is administered, since the hearings take place in virtual environments and platforms whose location is not always public. On many occasions, the legal system tries to alleviate the lack of publicity by allowing the court to agree to broadcast the hearings by electronic means, provided that the material equipment is available to do so – although without specifying what those means are or could be. This is an essential adjustment to ensure the validity of the principle of public proceedings – as enshrined at a supranational level, for instance, by Art 6 ECHR and Art 47 CFREU^[89] – and, with it, the constitutionality of the system of virtual hearings.^[90] 
78. If proceedings are written, the constitutional mandate of publicity is fulfilled by allowing access to the files and/or records of the case to the parties or to third parties showing a legitimate interest,^[91] provided that data protection is safeguarded.^[92] And it is also true that virtual hearings will be documented by means of their recording, which will also be accessible to interested parties.^[93] However, being satisfied with this form of publicity would entail a ‘label fraud’, since it would mean treating remote hearings as written acts, when the truth is that they have been designed as an alternative format to comply with the legal option for orality. Except for justified reasons associated with certain values -such as privacy, the rights of minors or national security, it is characteristic of oral proceedings that the public can attend them spontaneously if they so wish, without the need to show a specific legitimate interest^[94] – which is required for access to court records or files.^[95]
79. It is equally important to insist on the value that publicity brings to oral proceedings: it is not only a basic safeguard for the parties, which protects them against the arbitrariness of the public power;^[96] again in the realm of the ineffable, the (possible) presence of the public in oral proceedings results in a better quality of the system, since it encourages the protagonists of the act – primarily judges and lawyers – to a better performance of that part of their function that is visible in it; and this even if the audience at a trial ‘is not supposed to do anything’, since ‘[t]he ultimate purpose of the public trial is to prevent anything from occurring during the proceedings that would be subject to public condemnation’.^[97]
80. Therefore, any option for the generalization of remote hearings should be accompanied by a more detailed regulation of public access to the ‘virtual courtrooms’,^[98] through mechanisms that would ensure the publication on the electronic sites of the judicial bodies of the links^[99] or channels for live broadcasting of their proceedings.^[100] The Indian criterion on this matter, set already in 2018 in Swapnil Tripathi v Supreme Court of India,^[101] is of great interest: upon the petitions filed by various individuals and groups before the Supreme Court of India under Art 32 of the Constitution, the Supreme Court ruled that proceedings before the Supreme Court in cases having constitutional and national importance and/or having an impact on the public at large or a large number of people should be broadcast to the public.^[102] 
81. It should be noted, in addition, that it is not the same to broadcast – on TV or on an internet channel – a trial that is taking place in public, which can be said to be in any case public,^[103] as it is to broadcast an on-line trial, for which streaming may be the only real formula for public access. After all, this is not just an issue for virtual hearings, but more generally for all ‘online courts’ or equivalent features of the future. The requirement for publicity will be in these cases more necessary than ever because, as has been noted, ‘digital courts must be open courts’.^[104]
82. It is, in any case, something that must be done with caution and with limits.^[105] On the one hand, national lawmakers should not fall into the temptation of anachronism and disregard the impact of ICT on the notion of public proceedings.^[106] The German Act to Promote the Use of Video Conferencing Technology in Civil and Specialist Jurisdictions might be seen, nevertheless, as an example of attachment to an outdated approach to publicity, still identified to the possibility for the public to enter the physical premise where the court activity is taking place. According to the new legislation, publicity of virtual hearings is ensured in one of the following ways: if the judge (or at least the presiding judge) is directing the hearing from the court premises any interested person could enter the room and, of course, watch the screen where the virtual part of the hearing is being displayed;^[107] if the hearing is being conducted in fully virtual manner, then the hearing shall be broadcasted into a room within the court building, where any interested person could enter into.^[108]
83. The recent Spanish Act on the use of ICT in the Administration of Justice enacted in 2023^[109] is more reasonable on this point, as it provides for public broadcasting of procedural activity trials that are held entirely by videoconference through electronic channels. In order to ensure the public’s knowledge, the electronic judicial sites will publish the list of trials and hearings to be held by each judicial body, and the form of access to them for publicity purposes. It is also contemplated that there may be different levels of security and public access, as well as non-transmission in the same cases in which a face-to-face trial would have to be held behind closed doors (eg, when dealing with intimate matters or those affecting public safety). Where the proceedings are hybrid, however, the solution is similar to the German one: the court may consider it sufficient to allow the public access to the courtroom from which the physical part of the hearing takes place.
84. Courts are public institutions and, therefore, must act in the public eye, an eye that has become digital: digital publicity seems to be of the essence. Nevertheless, it is necessary to act with clear awareness of the new context, where social media and social networks are not neutral and may have an impact on judicial proceedings, on the independence of adjudicators and on the privacy of the parties (especially, accused parties in criminal cases). This explains, for instance, why Malaysia bans photography of any proceedings in the ‘physical’ courtrooms and is considering whether taking screenshots during virtual hearings and sharing them would also amount to contempt.^[110] And it also explains, to put an example from the other side of the globe, the ban to record virtual hearings that should be imposed in Germany on the parties according to the above mentioned Act to Promote the Use of Video Conferencing Technology in Civil and Specialist Jurisdictions^[111] or in Spain, pursuant to the new Act on the use of ICT in the Administration of Justice.^[112] 
85. Data protection is equally essential – and the need to respect it goes without saying. But it is not only about protecting the data of the parties and participants in the proceedings. For the public, one can imagine that in many cases, access to a virtual hearing will be made available through a link to the virtual session, which may be available online without further ado, or which may be received upon registration and request. This second mode of access through a link obtained upon registration avoids the risk of interference or disruption of the proceedings, but it should be borne in mind that it removes the anonymity usually enjoyed by those who attend trials and hearings in person at the physical seats of the courts. It must therefore be ensured that the data collected for the purpose of authorizing public access to a judicial videoconference cannot be used for other purposes and that the records are deleted after the videoconference has been held.
86. And new additional safeguards, not imaginable in the face-to-face world, can be used, like establishing a time gap between the filming and the dissemination, when this appears sensible for the proper administration of justice.

8 Powers of the Court and of the Parties as to the Format of the Hearing

87. In a scenario of procedural reforms aimed at standardizing remote hearings, legislators can be expected to offer general rules – in one sense or another – but also exceptions to the rule and/or criteria to take into account for their application. Therefore, an essential piece for a good regulation of the use of remote hearings will be the distribution of powers between the court and the parties when defining the format of a specific oral activity, in application or development of the legal provisions.
88. Many of the rules regulating remote hearings as an emergency solution during the pandemic established a preference for the virtual format, so that it would be the in-person hearing that would have to be justified in each specific case. The initiative to opt for the virtual or the face-to-face holding of an oral hearing was also attributed to the court, which could impose it on the parties. This is a logical regulation in times of emergency and restrictions on mobility and meetings of people in closed places.
89. Is it reasonable to maintain it for the future? In my opinion, the answer must be yes, at least in general terms.
90. Indeed, it is up to the legislator to determine what the general rule should be if it considers that there should be one: face-to-face or virtual (or hybrid) development. It is also conceivable that there may be different general rules depending on the type of oral activity in question or their possible content: thus, as seen above, it is conceivable that the virtual holding of complex trials or trials in which important interests are at stake – be they economic or not – may be prohibited. And it is also possible that the legislator prefers not to make any general choice and refers the decision to the court in each specific case.
91. However, whether there is a general referral to the court or to legal rules, the court must have the power to define the specific format of an oral hearing, depending on the circumstances of the case and those of the judicial body itself (agenda, available space, local epidemiological situation, etc). Conversely, the court should also have the power to force the personal presence of subjects who would have preferred a remote presence. The court should thus be attributed an unequivocal case management power regarding the format of the hearings, for the exercise of which a succinct motivation should suffice.
92. Assuming the primary role of the court, in practice it is interesting to define what the powers of the parties should be in relation to the format of oral activity.
93. (1) The will of the parties should undoubtedly be a very relevant element when the court decides on the format of a hearing and, in any case, it should be provided for in the legislation as a possible exception to any general rule. In fact, in some jurisdictions, it is seen as a precondition for a virtual trial to take place.^[113] But it would be excessive and, in many cases, dysfunctional for the will of the parties to be imposed on the court. This approach probably explains why regulation^[114] or practice,^[115] in other jurisdictions, grants the court the power to decide the format. In addition, it is also worth considering the possibility that the parties may enter into procedural contracts regarding this issue,^[116] either to try to force the virtual holding of a hearing legally foreseen as face-to-face or, conversely, to try to impose on the court their will to hold a certain hearing foreseen as virtual by the law in a face-to-face manner. Even if parties would not be allowed absolute power, it would be sensible, at most, to require the court to provide a reinforced statement of reasons for departing from the previously agreed will of the litigants.
94. (2) But, above all, it is up to the legislator to decide to what extent it allows exceptions to the rule and, especially, to what extent it grants the parties the right to request an exception to the rule.
95. In accordance with what has been mentioned above, it would be reasonable that a litigant could object to the virtual format of a hearing on the grounds of lack of technical means to face it with full guarantees. In such a case, for purely procedural fairness reasons, the court should offer adequate support measures and, if these are not feasible, a return to physical presence could be considered, although this could result in the postponement of the procedural activity to a later, perhaps undetermined, time.
96. On the other hand, a possible rejection of the virtual holding of a hearing validly based on an alleged lower quality of the procedural activity carried out in this way would be more questionable. As seen above, there may be grounds for such a rejection, especially if no legal measures have been taken to ensure a sufficient standard of technical quality. But the generic nature of the argument would turn it into an overly broad power that would lead in practice to a lack of legal certainty concerning the format of proceedings. In the United States, there are precedents in which the primacy of the court’s discretion has been recognized.^[117] In Australia, the holding of a virtual trial was also challenged on the grounds that it would deprive the parties of the safeguards of a face-to-face trial, especially regarding the cross-examination of witnesses. The Federal Court, however, considered that the technical advantages of videoconferencing platforms did not create a real disadvantage.^[118] In Canada, to end the examples, courts have upheld the prevalence of virtual trials on proportionality considerations.^[119] 
97. Since 2021, China’s Online Litigation Rules of the People’s Courts opened the way to the so-called ‘Smart Court’^[120] and offer a very detailed regulation on this issue.^[121] Pursuant to Art 21, the decision to hold the trial online will rest on the court that will decide based on factors such as the willingness of the parties, the circumstances of the case, its social impact, and the technical conditions. However, the rules provide for explicit exceptions, where online trial shall not apply:

(1) if all parties expressly object, or one of the parties objects with justifiable reasons;

(2) if none of the parties has technical conditions and capability to participate in online trial;

(3) if it is necessary to ascertain the identity, verify the original documents, or examine the physical evidence on site during the trial;

(4) if the case is difficult and complicated, has considerable evidence, and applying online trial is inconducive to ascertaining the facts of the case and applying the law;

(5) if the case concerns national security or State secrets;

(6) if the case has a significant social impact and has attracted wide public attention; or

(7) if the People’s Courts deem that there are other circumstances under which online trial is inappropriate to be applied.

98. If the trial started under online format and any of the aforementioned circumstances is detected at a later moment, the court shall immediately switch the trial to offline trial, but activities completed during the online trial shall have legal effect. (This last provision is very relevant, although it might be debatable, especially if the reason to abandon the online trial is related to a defective taking of evidence).
99. Looking into the future, interesting guidance is offered, once again, by some of the most recent legal reforms. The German Act to Promote the Use of Video Conferencing Technology in Civil and Specialist Jurisdictions has reinforced the judicial powers regarding the holding of a hearing remotely: (i) the main power rests on the presiding judge, who is entitled to order the remote participation in the oral hearing for one party, several or all parties to the proceedings; (ii) this decision may be taken ex officio or at the request of a party; (iii) the presiding judge shall give reasons for refusing a request to participate by videoconference in the oral hearing.^[122] The Spanish Act on the use of ICT in the Administration of Justice also gives judges the final say on the format of hearings and the type of participation – face-to-face or virtual – to be had by the parties and other participants (such as witnesses and experts).^[123]
100. In short, it is preferable for the general rule to be the primacy of the court’s criterion, although it is a good legislative technique that the regulation on this point should not be too rigid. After all, it is a matter of seeking efficiency with parameters of proportionality. The legislator is, of course, expected to formulate in the procedural law, in general terms, how the various conflicting values are to be reconciled. But it is the task of the court, with the cooperation of the parties, through the notion of active case management, to establish what is most efficient and fair in a specific case, something that is only possible with flexible rules.
101. This is, in fact, the approach that can be deduced from the ELI/UNIDROIT Model European Rules of Civil Procedure. First of foremost, because they place the principle of cooperation at the heart of the relations between the court and the parties, and between the parties among themselves.^[124] And, as far as the specific issue of remote hearings is concerned, because they offer a balanced, sensible and reasonable view. They do not directly address the issue of virtual hearings, possibly because they were drafted before the pandemic. Perhaps this is why special value should be placed on the general rule contained in Rule 18(4), which, in the context of the dichotomy between oral and written proceedings, states that: ‘In so far as appropriate, proceedings may be conducted using any available means of information and communication technology’. This provision, in turn, is linked to the more specific Rule 97(3), which deals with the taking of witness evidence, for which videoconferencing is admitted as a possibility.^[125] All of this, in turn, is related to the notion of case management on which the procedural model of the European Rules also rests. And the case management powers of the court include, according to Rule 49(3), that to ‘determine the type and form of the procedure’.

9 Some Final Remarks

102. The necessary reaction to the pandemic served to enshrine or to reinforce remote hearings in civil proceedings all around the world. Now that the health emergency is over, health protection is giving way to efficiency and sustainability in order to justify a format that represents a turning point in the way of conceiving orality, immediacy and publicity of procedural activity. The advantages of virtual hearings have been discovered and tested during the last four to five years: they bring flexibility, convenience and procedural economy lato sensu; this explains the current trend, in most jurisdictions, to turn provisional and emergency regulation into a far-reaching development. But the experience of the last years has also served to detect – even to study – their inconveniences: they deprive oral proceedings of ingredients that redound to the quality of judicial activity and that, to a large extent, lie behind the legislative option for orality.
103. It would be wrong, therefore, to consider that the commitment to virtual hearings only affects the external or purely procedural dimension, ie, the forms or the ‘visible’ part of the development of proceedings. It should never be forgotten that the external design of the procedure determines and guarantees the fairness of the process as a tool for the protection of the legal system and the satisfaction of claims. The higher the quality of the tool, the higher the quality of the result.
104. By opting for remote hearings, most legislators are undoubtedly seeking to jump on the bandwagon of efficiency, technological modernity, and sustainability. But they are running the risk of doing so insufficiently if they omit the mandatory nature of technical and procedural requirements suitable for reinforcing the quality in the development of the hearings, in terms of immediacy and publicity. And it should not be forgotten that efficiency, properly understood, always requires preserving the quality of the results.
105. Likewise, it must be remembered that efficiency must always go hand in hand with proportionality: the virtual development of the trial or the main hearing in a complex case with abundant evidence will undoubtedly have a greater (negative) impact on the final outcome of the process than the virtual holding of the hearing to decide on purely procedural or incidental issues. A good exercise of the case management powers should include the appropriate choice – of course, in a scenario without health hazards – of those hearings that are to be carried out in a virtual format.
106. At the moment, most countries are in a transition period and, to a large extent, many of them are extending the validity at this point of rules on virtual hearings that were approved in an emergency situation or that predated the pandemic and, therefore, had not been subjected to the ‘stress test’ of ‘courts in lockdown’. It remains to be seen, therefore, how the proposed or planned reforms will turn out.
107. It is possible, in fact, that the debate on remote hearings will see its paradigm shift in the years to come. In fact, we are still analysing the impact of virtual hearings in the framework of proceedings that are still ‘traditional’ in their structure, that is, they are still predominantly imagined by the legislator and practitioners as taking place ‘face-to-face’ in most of their parts: how the parties communicate with each other before the conflict crystallizes; how lawyers relate to their clients; how the court staff works in the courtroom; how the various judges who have to decide in panel communicate among them; and so on.
108. But all this is what is changing. Possibly the generalization of virtual hearings will cease to be so disruptive once – or if – online courts and online proceedings become widespread – or even the normal. This will be discussed in the next part of this chapter.

Part II
Online Courts and Online Proceedings: The Future of Civil Proceedings?

109. Using videoconferencing to take evidence or to hear one party still leaves a physical place for the court and the rest of the parties, as well as for the rest of the activity that the whole development of a procedure requires. As analysed in other chapters of this segment, remote hearings are not the only IT-technology being used to improve procedural efficiency: new functionalities are continually being added to the existing tools, which may lead to forgetting the court as a physical place and replacing brick-and-mortar courtrooms by virtual judicial networks in the near future. This is what lies behind the notion of online courts and online proceedings and the different projects and experiences that are currently being developed in different jurisdictions.^[126] 
110. We have already seen how the use of videoconferencing does not have merely formal consequences but can produce much more substantial effects. It is therefore conceivable that the establishment of online courts affects not only fundamental procedural principles (such as that of the adversarial principle) but also the way in which the administration of justice is perceived (by lawyers, judges, and, above all, citizens).

10 Towards a Definition of Online Courts

111. What are we talking about when we talk about online courts? This is a basic question since the expression seems to be used to refer to different realities depending on who is using it and what they are using it for. Many governments – as well as private businesses and platforms − use the label ‘online courts’ or ‘virtual courts’ in the projects they develop to promote the use of ICTs in the administration of justice. It is clear, on the other hand, that talking about online courts in 2024 cannot have the same meaning it had in 2010, because the evolution on this point is being dizzying. Nor can the content of the expression be expected to be the same depending on whether we are in a developing country or a pioneering country in the incorporation of technology into public governance.
112. If we want to start with the simplest, we have to make clear what online courts are not: they are not ordinary courts that use ICTs for a more efficient operation; or, if preferred, the fact that an ordinary court uses technological tools does not automatically make it an online court; in these cases we can speak of heavily technologized courts or courts that rely, to a greater or lesser extent, on technological tools.
113. Otherwise, the paradox would be that, thanks to e-filing and e-service, many courts have unwittingly − even magically − become online courts! This would be the case, for instance, in many courts of appeal and supreme courts, where hearings are not common, especially at the highest level, where the extraordinary nature of cassation appeals does not require the taking of evidence: if the appellate procedure is conducted in writing and all communications and exchanges of pleadings take place via a digital platform, the illusion would be triggered that the procedure is online and that the court itself operates online, even though nothing has changed in the procedure itself or in the court. It would also be the case for those courts which deal with written procedures in the first instance, something which is relatively frequent in administrative matters, but also in the field of small claims: it should be recalled, in this respect, that the European legislator itself attributes to the European Small Claims procedure a preferably written character.^[127] And it would be the same whenever a court conducts a full procedure online, but online because the circumstance is given that the preliminary hearing (if any) and the trial (if any) take place online.
114. However, the notion of online court cannot be identified with a mere result that can be achieved because the conduct of proceedings before a court − before any court − does not require the litigants, their lawyers or even the judges to go to the physical location of a court building. In a different way, the expression online courts seeks to mark a difference, with the intention of conveying the message that they are something more, that they represent a turning point, insofar as a qualitative change in the way justice is dispensed is inherent to them, and that this change is not limited to the mere use of electronic tools -although it is sustained by such use.
115. At the present time, I believe there are two essential elements that define what a true online court is or should be: they are ODR systems, but they are still courts.

10.1 Online Courts as ODR Systems

116. An online court is not an ordinary court, that is, it is not a structure of human and material resources, attached to a physical space, placed at the service of the development of those material activities that are necessary to apply the law in particular cases and, thus, to solve disputes.
117. Online courts belong to the world of Online Dispute Resolution and, therefore, rather than bodies or structures, they are better qualified as systems and, more precisely, as comprehensive systems for the online processing of certain activities that are considered appropriate to resolve a dispute.
118. ODR is a very broad concept that does not coincide exactly with that of jurisdiction or ADR.^[128] What is unique to ODR is undoubtedly that all activities are carried out in an advanced electronic form, based on communication networks (Internet) and with the use of software and computer programs that allow the efficient processing of huge amounts of data: what is characteristic, therefore, is that the resolution of disputes is carried out online. Of the three letters of the acronym, therefore, it is the O that is most typically defining: dematerialization is complete, as the support for all activity becomes electronic and is available online.
119. Things can be done online that would not work or would not make sense in person (such as asynchronous communication at a distance); and, conversely, there are certain things that make sense in a physical environment, but do not make sense online (such as the use of gowns and wigs, where they still persist, which are associated with a type of formality and ritualism that makes less sense online, even though formality itself and a certain ritualism may still be considered essential). It is crucial to keep this in mind in order to understand that ODR is not about mimicking traditional judicial processes, transferring the activity itself to the web. In a different way, ODR requires a different way of working, which allows taking advantage of the functionalities of digital and online, and which determines the need to resort to procedures that, undoubtedly, will also have to be different. This is an essential factor when it comes to properly regulating ODR systems and, more specifically, online courts.
120. With ODR – and, hence, with online courts – technology ceases to be a tool and becomes the core of the system.^[129] It has been said, therefore, that in ODR technology is a sort of ‘Fourth Party’,^[130] whose function is to be at the service of a more efficient resolution of the dispute by the neutral third party – the court, as far as we are now concerned, but not only.
121. As has been accurately noted by Katsh and Rabinovich-Einy,^[131] ODR brings about three major shifts in dispute resolution:

— From face-to-face or physical settings to virtual ones.

— From human intervention and decision making to software-supported processes.

— From confidentiality to data management.

122. (a) Regarding the first shift, ODR leads to the disappearance of the court as a physical space or as a ‘place’ and, with it, to the disappearance of the notion of ‘courtroom’. The implications of abandoning this courtroom-centric approach are many.
123. The most visible one has occupied us so far: the replacement of face-to-face by virtual hearings. In fact, this change is based on a larger one: it is not that some hearings can be held virtually, while maintaining the physical space of the court as a possible meeting place for the parties, lawyers, judges and court officials. The disappearance of the court as a physical space determines that during the proceedings there is no interpersonal contact other than remote. Consequently, the variables will no longer oscillate between face-to-face and virtual, but there will be other duplexes for communication activities that will always take place online: synchronous or asynchronous; in writing or with image and sound; intended to be recorded or conceived not to be recorded, for instance. As can be seen, the debates currently existing in relation to virtual hearings are typical of the pilot or 1.0 versions of genuine online court.
124. If the notion of the court as a physical space disappears, so do the constraints that space itself imposes on traditional courts and proceedings.^[132] It has been said, in this vein, that the virtual element modifies the relationship between the proceedings, on the one hand, and the notions of time and space, on the other hand.^[133] To the extent that technology permits, it is possible to design virtual environments suitable for the development of procedural activities that require a meeting and interaction between the parties, their lawyers and/or judges. There may be more scope for catering to the user experience, to the extent deemed appropriate.^[134] It is also clear that certain obstacles generated by physical barriers can be alleviated. The ‘digital architecture’ of online courts may also play a significant role in the fairness of the proceedings and in the procedural safeguards of litigants: decisions can be made as to how it shall look like on the basis of psychology and behavioural research, aimed in turn at nudging users to properly take advantage of all the facilities provided by the platform.^[135] One latest trend (in spring 2024) is the holding of trials ‘in the metaverse’:^[136] with the use of virtual reality glasses and through avatars, the joint presence is recreated, in the same imaginary space, of those who are in different places. Like everything else, this option has advantages and disadvantages (in addition to those of virtual trials). On the positive side, it can be said that the use of avatars, for example, can free the parties from the prejudices that their physical appearance can provoke; in the case of vulnerable persons or minors, it can provide a less hostile environment that mitigates secondary victimization. But genuine eye contact − not even contact mediated by the screen − will no longer be possible, and the notion of ‘justice with a human face’^[137] may be seriously compromised.
125. It is to be expected that this type of experience will become more widespread; but there is also a serious danger that, precisely because of its drawbacks, another trend of a different sign will become mainstream: avoiding simultaneous meetings – ie, what we still know as oral hearings – as much as possible and replacing them with writing or with asynchronous exchanges of video messages or recordings. The progressive decline of personal means of evidence, criticized for their reduced reliability, and the impressive tendency to have electronic traces of much of the human activity, that leads to the use of electronic means of evidence, may end up triggering the perception that oral trials, as the scenario where personal means of evidence are taken in a ritualized manner, are unnecessary.
126. The change of physical space should also lead − as mentioned above − to the progressive replacement of the formalities and rituals that are currently used − and which, in fact, vary from country to country − with others that make sense in the virtual environment. In this respect, the evolution will probably be slower and will be associated with a progressive generational changeover – from citizens to ‘netizens’^[138] −, as people whose lives have developed more intensely in digital environments become active participants in the judicial system and who are consequently clearer about the elements (visual, sound, design) that are perceived as useful for reinforcing the seriousness and importance of what takes place online.
127. On the other hand, the disappearance of the physical-spatial dimension of justice could end up influencing the judicial organization and the rules for distributing the workload among the courts of each state. If there is one thing that characterizes an online court, it is that it is not located in any specific place and can be accessed from anywhere: for this reason, the very notion of territorial jurisdiction – ie, venue rules inside the borders of a State − may become obsolete,^[139] since online courts do not need to be linked to a portion of the territory of the State that is close to their seat (remember that, traditionally, judicial districts were constructed according to the distance it would take for litigants to reach a court − eg, less than X days on horseback or less than Y hours by car). If up to now the division and territorial deployment of courts have been based on criteria of access to justice understood as physical access to the court building, the paradigm changes with online courts, since there is no other access than good computer equipment and a good internet connection. The duty of the state, therefore, has to be directed more than ever towards bridging the digital divide in all its dimensions (including access to good internet-connected computer equipment in remote locations).^[140] Although it is to be expected that online courts will continue to have one or more physical seats,^[141] these are irrelevant for litigants. Therefore, a generalization of online courts should make subject matter the prevailing criterion for the distribution of work among the courts of a state: it is easier to promote judicial specialization in online courts, because the distribution of human resources (ie, specialized judges) is done on a national, not territorial, basis.
128. In fact, the notion of ODR and online courts was initially associated with the idea of litigation also arising online,^[142] mainly in the field of consumer e-contracting.^[143] However, this is not a requirement, because an ODR system is suitable, in principle, for the adjudication of any matter. In any case, it is easier to imagine an online court in disputes in which (all or part of) the facts to be judged have occurred online and, consequently, the evidence to be handled by the court to resolve the dispute is also electronic. And, of course, it seems difficult to imagine an online court dealing with a proceeding aimed at taking protective measures in respect of an incapacitated person, where direct contact between the judge and the alleged incapacitated person is usually required −to pose a radical example.
129. (b) The second shift is even more disruptive for many of the current generations, since it involves moving from a procedural model in which all decisions are made by human beings to one in which decision-making is supported by computer programs, or even some decisions are made directly by such programs.^[144]
130. From this point of view, what ends up changing is the structure of the proceeding, that is, the pieces that compose it. The classic definition of ‘process’ tells us that it is a series or succession of acts, regulated by law, which leads to the achievement of a certain end: in the case of a judicial process in the first instance, to the issuance of a judgment that resolves the claim for relief brought by the plaintiff. The incorporation of technology in the development of proceedings admits many degrees, depending on the type of technology and depending on the aspect of the procedure to which it refers. The most basic, of course, is the automation of decisions that depend on objective variables that can be ascertained without difficulty.^[145] The most sophisticated, of course, is the incorporation of artificial intelligence tools in decision making, whether these are purely procedural^[146] or even if it is a matter of the judgment on the merits.^[147]
131. In many respects, the transition from human decisions to machine decisions can be justified on purely efficiency grounds: machines, if they are well programmed and well ‘trained’, work better than humans and are capable of doing much more (especially, as we shall see below, taking better advantage of data). An automated structure, on the other hand, makes it possible to better interconnect negotiation and decision-making techniques: this is why, as we shall see, in most of the online court experiences developed so far, negotiation and mediation are part of the ODR system and are not conceived as something ‘prior’ and, therefore, distinct or alien to the proceedings.
132. An online court, in any case, is characterized by using a procedure that is highly digitalized and strongly controlled in its development by software programs: in other words, it is a procedure much less dependent on the human factor to fulfil its purpose. [The human factor is indispensable, but not so much in the operation as in the design and control of the software and especially of the algorithms.]
133. Automated processing of procedures may end up having an unexpected beneficial effect on judicial processes. Indeed, one of the major criticisms levelled against state justice is that it is slow, which is associated with its overload: with (very) limited human and material resources, delays in the processing of cases cannot be avoided. Automation should bring an exponential increase in the processing capacity of the courts and this, if well managed, may eventually defuse the aforementioned criticism associated with slowness.
134. This, however, should be taken with a grain of salt. At least at present, a blind trust in technology, and especially in Artificial Intelligence, is not properly justified. AI tools that support judicial work and that simplify and reduce procedures are undoubtedly more acceptable and less controversial: it is not just a matter of speeding up the course of proceedings, through a more automated impulse; we can also think, for example, of increasingly accurate translation tools, or of tools for transcribing recordings of hearings. On the other hand, their use is much more questionable when it comes to making autonomous decisions on relevant aspects of the process and, in particular, to drafting decisions on the merits, even in simple cases. On this point, supranational legal texts insist on the need to maintain human control and to limit the role of computerized systems as much as possible.^[148]

See, among the most relevant:

— The European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment, adopted in December 2018 by the Council of Europe’s CEPEJ (European Commission for the Efficiency of Justice).^[149]

— The CCBE Considerations on the legal aspects of Artificial Intelligence, approved in 2020 by the Council of Bars and Law Societies of Europe.^[150]

— The Guidelines of the Committee of Ministers of the Council of Europe on online dispute resolution mechanisms in civil and administrative court proceedings, adopted in June 2021,^[151] 

— The Guiding Principles for Automated Decision-Making in the EU approved by the European Law Institute in May 2022.^[152]

— The Opinion Moving forward: the use of assistive technology in the judiciary adopted by the Consultative Council of European Judges (CCJE) on 1 December 2023.^[153]

— The Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law, approved by the Council of Europe on 17 May 2024.^[154]

— The Artificial Intelligence Act of the European Union,^[155] including among high-risk AI systems those:

intended to be used by a judicial authority or on their behalf to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts, or to be used in a similar way in alternative dispute resolution.^[156] 

135. (c) The third shift^[157] is possibly the least flashy or glamorous, but the most transformative. The big difference between the use of technology by ordinary courts to be more efficient and the use made of it in ODR systems is that in the latter, data are collected, used and reused. In other words, ODR systems are also characterized by the use of the data generated by each specific case not only for the purposes of the case itself, but also for purposes other than the management of that same case. Indeed, the processing of the data allows the system to identify the type of litigation in progress, the identity of the litigants, the type of claim and the type of defence put forward, among many other variables. This, when permitted by law and under the terms allowed by it, can be used by AI systems to propose decisions to the judge or to automate certain decisions to be taken in the course of the proceedings. But, beyond the specific process, ODR systems make it possible to gather huge volumes of information through the data of each proceeding, which can be used by the public authorities in many ways. On the one hand, to feed algorithms that propose solutions or decisions in specific cases. Also to have a much more accurate and comprehensive judicial statistics, which can be generated automatically, without relying on the human factor (where court officers are the ones who periodically send information on specific items). This information can also be used to take a step forward and prevent litigation. This is Online Dispute Prevention (ODP),^[158] insofar as the data extracted from the system makes it possible to detect the most recurrent types of disputes and the most common sources of controversy, which in turn can lead to legislative changes aimed at correcting them or to the adoption of other measures capable of reducing litigation (eg, by imposing new obligations on businessmen in their transactions with consumers). This is why online courts and ODR are related to the notion of e-governance.^[159]
136. This data handling, typical of ODR systems, always generates the reluctance associated with the collection of big data and the respect of data protection rules. Judicial proceedings, by definition, are public and, therefore, there is no confidentiality other than the strict confidentiality stemming from the subject matter of certain disputes (eg, when they involve minors or family law issues). The same is not true of ADR systems, which can also be channelled through ODR systems: one of the advantages that ADR has over state justice is precisely confidentiality. It is reasonable to think that the data processing techniques used by ODR systems do not make them public – ie, generally available to the public – and that, in any case, when the data are personal data, they will have to be respectful of the rules governing their processing (in Europe, the GDPR and its national developments). But it is clear that this data will be stored and will be subject to use and reuse so that the issue of security and protection takes on a scope with the ODR that it would not ordinarily have.

10.2 Online Courts Are (Still) State Courts

137. The notion of ODR is neutral in relation to who is its ‘sponsor’. In fact, its origins are in the field of ADR and, more specifically, associated with the dispute resolution mechanisms offered by large online trading platforms, which assume that their users value the existence of online channels for dispute resolution without having to go to court. When an ODR system is used to operate a private ADR scheme – eg, the arbitration court of a chamber of commerce or bar association − it is, in one way or another, subject to the rules of competition in the market: if it is well designed and works well it will find more users and handle more cases, which in turn will reinforce the volume and quality of the data, in whose proper processing and use its strengths will also be found.
138. However, to speak of online courts is to speak of the use of ODR systems at the service of state justice. Online courts are courts of justice in the strict sense of the word, ie, they are organs of the state that are vested with the public powers of courts and their decisions therefore have all the attributes of judicial decisions.^[160] They may even present themselves as ‘court-annexed’, but indeed as a part of the court system.^[161]
139. Some experiences in the ODR field present the bodies that administer it as online courts. It is important, however, to avoid misunderstandings and confusion with the names: there are only true online courts, in the sense that interests us here, when they are State bodies that meet the conditions to be qualified as judicial bodies.^[162] Otherwise, they are in fact ADR or arbitration systems, with decision-makers who may be empowered by the will of the parties to make binding decisions, nothing more – but also nothing less.^[163] This would entail the additional paradox that it would be necessary to resort to the force of the state to promote the enforcement of decisions, given their arbitral nature and the lack of power of these so-called ‘online courts’ to force compliance.
140. Consequently, where genuine online courts and online proceedings exist, if the legislator so decides, they may be the only courts and the only way to obtain justice from the State: although in some pilot experiences recourse to an online court is optional and requires the agreement of both parties, it is also to be expected that at some point recourse to an online court will be inevitable − it will be the only type of court for the dispute − and that, as a result, online proceedings may be imposed on the opposing party. This, I believe, will only be a matter of time.
141. Moreover, the fact that online courts are courts in the strict sense of the term means that they have the full backing of public force in the broad sense of the term. This determines, firstly, that the judgments handed down by the online courts produce preclusion and can have the effect of res judicata in the same way as any other judgment handed down by a traditional court in the context of traditional proceedings. And, of course, these judgments will, depending on their content, have declaratory, constitutive and/or executory force. Thus, a judgment handed down by an online court can be entered in the land register if it declares a person other than the person registered as the owner of the property to be the owner. And, of course, judgments issued by online courts will also be enforceable. In fact, progress is also being made in the direction of electronic and online enforcement, which can be more easily imagined, for instance, when it comes to enforcing the payment of money judgments from assets held in bank accounts.
142. The Spanish Punto Neutro Judicial (Neutral Judicial Point) is a specific platform that shows great success in this regard.^[164] The PNJ is a complex platform, created by the General Council of the Judiciary, which serves to make available to the courts a very diverse network of services, which have in common access to applications and databases with useful information for the development of judicial activity. Very diverse administrations are integrated into the PNJ: the Tax Agency, the representative bodies of the legal professions (lawyers, notaries, registrars), the police, the traffic administration, the Prosecutor’s Office, the Ministry of Justice, the prison administration, the social security administration, among others. The PNJ provides a wide number of services, which include property inquiries, information exchanges, prison inquiries and access to judicial statistics. The PNJ has proven to be very useful in enforcement proceedings, more specifically when it comes to performing the necessary tasks to carry out the discovery of assets. The information in public registers should be made available through electronic means, as well as that in the possession of public bodies and financial entities. This would allow sparing time, something which is of the essence if we want to avoid assets to ‘vanish’ as soon as the debtor has the suspicion that the creditor might be starting enforcement proceedings against him. When court clerks are required by the creditor to perform an investigation on the debtor’s assets, they just need to enter the platform and introduce the debtor’s official identification number and launch a search with all relevant entities. The request will be automatically transferred to the electronic files of those entities, which will in turn deliver the information they are holding: immovable property, cars, bank accounts, and so on. The system is not perfect, especially regarding bank accounts, because it does not allow any sort of online access to the debtor’s bank account, but only monthly or quarterly reports. As compensation, the system allows the court clerk to launch an immediate seizure of the money standing to the debtor’s account –provided that there are sufficient funds.^[165] 
143. In addition to the above, the fact that online courts are courts in the strict sense of the word means something even more important than the above − or, in any case, just as important: unless the parties reach an agreement during the proceedings, the parameter for the resolution of the dispute must be the law. This is not the right time to emphasize the relevance of the courts’ attachment to the law in designing a system of justice and, more generally, for the rule of law. The important issue to underline now is that an evolution in the comparative landscape towards online courts does not require a paradigm shift on this point: whether online or face-to-face, state justice resolves disputes by applying the law. And, because online courts are state courts, it is equally important that the proceedings before them are fair, ie, compliant with due process of law requirements – eg, Art 6 ECHR or Art 47 CFREU).^[166]
144. In practice, however, there are at least two caveats to be made:
145. (a) To the extent that ODR and online court systems tend to incorporate negotiation and mediation tools within the procedure, it cannot be ignored that there will be a strong stimulus for a consensual solution, which does not necessarily have to be the one that would result from a full application of the law. It should be noted, in any case, that this phenomenon of imposing mediation – even if it does not become formally compulsory – is already occurring in the ordinary courts.
146. (b) The more online courts rely on AI systems to assist them in their decision-making, the greater the risk that decisions will be based on an algorithmic view of the law, conditioned by the AI systems’ analysis of past court decisions. This, again, is not a problem unique to online courts, but it can be aggravated in this context and, above all, its use in this area can be used as an argument to legitimize its extension to other areas. And all this, of course, assuming the absence of errors, something which, however, is far from being a reality: in this sense, a recent study carried out at Stanford University reveals a very high percentage of hallucinations and, therefore, of legal mistakes,^[167] something that was already beginning to be sensed as the media echoed the sanctions imposed on lawyers for alleging non-existent court decisions in their pleadings, due to the use of generative AI tools for their preparation without subjecting the case law citations included to subsequent contrast, as detected in the US^[168] or in Spain.^[169] This, indeed, has forced the bar associations to take measures.^[170] The problem may also affect judges, as already detected in Brazil.^[171]
147. In a different vein, and looking into the future, there are sectors of legal life where it is difficult to imagine anything other than ODR to resolve the disputes that may arise. This is the case, namely, with smart contracts, where decisions have to be taken at high speed. In fact, judicial ODR may not be of any use to them either, as many of them use ways of deciding that would be difficult to reconcile with the way it is reasonable to reach a decision in a judicial proceeding (this is the case, for example, with the so-called ‘crowdsourcing jury voting’ on which many blockchain-based dispute resolution systems associated with smart contracts are based, such as Kleros).^[172]

11 Some Experiences Around the World

11.1 Systems in Transition

148. It has been said before that not every court that makes advanced use of technology is an online court: not all self-proclaimed online courts really are online courts. Nor are those bodies whose name in some way evokes their relationship with the digital − as is the case with the Cyber Appellate Tribunal in India −.^[173] Nor, certainly, is there any such thing as an ‘official certification’ that a court meets all the requirements to be a genuine online court. On this point, as on so many others, the comparative picture offers very different and, above all, constantly evolving results.
149. The existence of genuine public or state online courts is, in some cases, the result of legislative action that has agreed to design them from scratch with these characteristics. Some of these will be discussed below. In most jurisdictions, however, an evolution or transition can be observed via the digitalization of the proceedings. ‘Traditional’ courts (offline courts, if the expression is accepted) are opening up to an increasingly complete handling of the proceedings through digital tools, which end up producing a result that is equivalent, at least externally, to an online court. The combination of e-filing, e-service and e-hearings results in neither litigants nor lawyers having to move to the courthouse. The evolution becomes more acute as all these tools are centralized through a platform capable of meeting appropriate security and authenticity requirements. The incorporation of tools − often based on artificial intelligence − that enable the generation of data that can be exploited − to better understand the reality of justice and litigation, on the one hand, and to design legislative policies and legal reforms, on the other − can close the transition. The seat of the court need not physically disappear, insofar as it is considered convenient to group judges and judicial officials in the same place, for reasons of public management. But it does disappear as the place where justice is dispensed, as that place will increasingly be the digital environment.
150. Some countries offer interesting examples of experiences that exemplify this transition process and, above all, show that progress affects different elements of proceedings: there is not a single way to make the transition into a clearer structure of online courts.

11.1.1 Australia: the New South Wales Online Court

151. Australia offers one of the oldest examples of this phenomenon, through the so-called New South Wales Online Court, operational since 2005.^[174] The terminology, of course, can be misleading. Indeed, the NSW government defines it on its website in the following terms: ‘Online court is an online forum that enables judicial officers and legal representatives in a case to exchange written messages about NSW Supreme, District or Local Court matters, instead of attending court to have the same exchange in person.’^[175] 
152. It can therefore be said that the online court does not exist as a specific judicial body, but that the online court is the expression used to describe the more or less virtual and electronic conduct of certain proceedings before the courts of that State. The aim of the online court is to replace face-to-face proceedings with online proceedings; hence it is probably more appropriate to speak of ‘online proceeding’ rather than of online court.
153. In addition, the New South Wales Online Court is limited in scope.
154. Firstly, not all proceedings can be supported by the online court. In the area of jurisdiction of the Supreme Court and the District Court, only some uncontested civil law matters are suitable to be completely developed under the scheme of online court. At Local Court level, it is only applied comprehensively in certain criminal cases.^[176] In all other cases, the use of the online court, through the JusticeLink and Online Registry platforms,^[177] is envisaged, but only as a basis for e-filing and communication of the parties with the court.^[178] 
155. The use of the online court, moreover, is not mandatory, but at the discretion of the court: in the Supreme Court, it is the judge, as a rule, who selects a case for online court and invites the legal representatives to participate (they can also suggest the use of the online court to the court).^[179] At Local Court level, on the other hand, the procedure is triggered automatically if each of the parties is a registered user of the Online Registry Website and the proceeding enters an approved list.^[180]
156. There are also some personal limits: before the Supreme Court the system is not available to litigants, self-represented litigants or non-parties.^[181] It can only be used, therefore, by legal practitioners and judicial officers. In the Local Court, on the other hand, the use of the online court is generally open to all parties.^[182]
157. Finally, the limits also affect the type of procedural activity to which the online court applies, as mentioned above. Practice Note Gen 12 (Sec 12) and Practice Note Civ 1 (Sec 42.1) state − and, thus, acknowledge − that ‘online court is a virtual courtroom’, ie, it is not intended to replace the physical seat of the court for all purposes, but primarily for oral proceedings and, above all, for channelling communications between legal practitioners, parties and the court. But it is excluded that it may be used ‘for communications solely between the representatives of parties’ (Supreme Court)^[183] or ‘solely between the parties’ (Local Court).^[184] 
158. This is a good example of the kind of evolution that many other countries have followed: the digitization of communications and of some hearings serves to change the landscape and to dematerialize proceedings, but falls short of a real revolution or disruption.

11.1.2 Singapore

159. Singapore is also often mentioned as one of the jurisdictions where justice is most digitized and which has made the most progress in having online courts.^[185] Strictly speaking, it must be said that Singapore’s courts are not online courts as such, as their dematerialization is not complete (nor does it seem to be necessary). However, it is true that court proceedings are heavily digitized and that judicial activity relies heavily on high-quality, specially designed platforms.
160. The most relevant platform, due to its general scope, is eLitigation,^[186] which serves to support the development of civil cases in both the State Courts and the Supreme Court, to family cases in the Family Justice Courts and to criminal cases at the Supreme Court. Its main utility is e-filing of applications addressed to the courts.
161. Alongside this, there are more specific platforms for the management of certain types of proceedings or for the management of proceedings before certain courts. Access to these platforms for litigants in person is associated with being registered in the Singpass system, a kind of multipurpose digital identity.
162. Community Justice and Tribunal Systems (CJTS),^[187] for instance, offers support to Small Claims Tribunals, Employment Claims Tribunals, Community Dispute Resolution Tribunals and to the Protection from Harassment Court.
163. On family matters, two additional platforms are offered in addition to eLitigation. On the one hand, the Integrated Family Application Management System (iFAMS),^[188] which provides access to online services in matters related to maintenance, protection against family violence and protection for vulnerable adults (the platform enables the filing of applications, viewing case details, the submission of court documents or changing a court date, for instance). On an even more targeted basis Divorce eService^[189] has been developed, that may be used to apply for divorce on the simplified track or to generate the documents needed to file a divorce.
164. In general, irrespective of the court, the proceedings are still associated with the physical seat of the court: preliminary hearings and hearings for most trials are face-to-face as a rule, notwithstanding the fact that the rules on videoconferencing may apply.^[190] However, when measuring the relevance of this data to determine the degree of digitization of Singapore’s justice system, the uniqueness of the country must be taken into account, especially in terms of its small size and the high concentration of its population, which undoubtedly reduces some of the requirements that are usually used to justify a greater generalization of remote hearings.
165. More specifically, although in principle only applicable within the Community Justice and Tribunal System, the possibility of launching an eNegotiation and eMediation tool,^[191] which are both fully online, is particularly attractive. The eNegotiation tool offers up to five rounds of exchange, whereas the eMediation platform offers an online chat session with a court-appointed mediator. In both contexts, if an agreement is reached, the issuance of a consent order by the court can be requested electronically. This increased involvement of consensual resolution tools in the framework of state-run dispute resolution is, as noted above, one of the features marking the evolution towards new forms of e-Justice.
166. On a general level the enormous help offered to users and, above all, the high quality of the help for litigants in person is particularly significant: information on the legal dimension and on how to manage the various steps of the procedure (including what documents to bring, how to dress in case of a personal appearance or how to identify oneself in court) and the various functionalities of the platforms are offered in a clear and understandable way. At this point, of course, the end result is very similar to what a genuine online court would offer, as it allows the core of the procedural activity to be managed without having to go to the physical seat of the court. Although there is no online court, there is high quality online support for litigants in person, so that the outcome, in many respects, resembles that which would be generated by fully online litigation before a virtual court.
167. An observation of the situation in Singapore also shows the versatility and flexibility offered by the digital environment to provide courts and litigants with tailor-made tools, depending on the disputes. Online courts are often associated with procedural specialities, linked to both the subject matter and the digital environment of the process. The use of unique and ad hoc platforms is, of course, an example of their usefulness, especially if the diversity of platforms does not lead to confusion thanks to the quality of the information. The transition towards greater digitization of the justice system seems to respond primarily to criteria of efficiency and, more generally, of pure modernity: it is a matter of adapting the justice system to the way in which economic and social life is increasingly developing.

11.1.3 Brazil and the Juízo 100% Digital

168. In Brazil the possibility of fully online proceedings has been open for almost two decades. In 2006, a regulation was passed at federal level, Law n. 11.419,^[192] which aimed at a complete digitalization of judicial processes, both from the point of view of internal management within the court, as well as in terms of communication between the parties and with the court, which was implemented through platforms.^[193] The most important is the so-called Sistema Processo Judicial Eletrônico – Pje.^[194] Others have been developed subsequently, such as SNIPER, designed to increase the efficiency of asset searches for the purpose of enforcement.^[195] 
169. This full equivalence between ‘traditional’ and ‘digital’ procedural acts was maintained with the adoption in 2015 of the new Code of Civil Procedure. Its Art 193 contains a very simple and broadly effective general rule: ‘Procedural acts can be totally or partially digital, so that they can be produced, communicated, stored and validated by electronic means, in accordance with the law.’ This general rule, when the legislator considers it appropriate, is developed and detailed with regard to specific procedural activity (as is the case, eg, with electronic service).
170. During the pandemic, remote hearings, which were only an option, became mandatory. The Conselho Nacional de Justiça took the opportunity to deepen the digitization of justice through Resolution 345/2020,^[196] which created a specific tool, the Juízo 100% Digital (‘100% Digital Trial’).
171. The Juízo 100% Digital is, first and foremost, an online procedure that has no specific regulation, but simply consists of all the procedural activities being carried out in electronic format via the Internet. It does not, therefore, create a different procedure from those regulated in the Code of Civil Procedure, but rather opts for the electronic format for all those that would also admit a face-to-face version. It is specifically specified that hearings will be held ‘exclusively’ by videoconference^[197] and that any interaction between the court and the parties, outside the procedural activity in the strict sense of the word, will also be digital: thus, the courts’ attention to the public will be non-face-to-face (it will be done by telephone, e-mail, videocalls, or digital applications, such as the Balcão Virtual, a kind of kiosk that allows access to all the elements of a court file^[198]); the attention of judges to lawyers will be developed in the same way;^[199] it is clarified, however, that online attention does not mean 24/7 attention, since the opening hours for the public will have to be respected.
172. Beyond the foregoing − which is already a lot – the resolution of the Conselho Nacional de Justiça is interesting because it allows the creation of totally virtual judicial units, which assume beforehand that all their proceedings will be handled as Juízo 100% Digital. In principle, the choice of Juízo 100% Digital is optional, it cannot be imposed: it must be accepted by the parties; moreover, it can be the subject of a prior procedural contract.^[200] However, in courts with several divisions, it is possible to allocate the cases in dispute in such a way that those cases in which the parties have opted for the digital process are attributed to the judicial units that have opted for this modality. These judicial units, therefore, would be the embryo of true online courts, with the singularity that they ‘replicate’ in virtual format a way of administering justice that is designed for the physical world and that they continue to have a defined territorial demarcation, which remains unchanged.^[201]
173. In many ways, Brazil is a counterpoint to Singapore: a very large and populous country, but also very unequal and with a genuine problem of access to justice. However, digitization has also become a hallmark of its judicial system. Resolution 345/2020 stresses in its recitals that the digitalization of proceedings promotes an increase in the speed and efficiency of justice. But it can also be seen as an imperative to compensate for geographical and socio-economic gaps, and thus as a tool to improve access to justice − and this is also pointed out in the first recital of the resolution.
174. In addition to the above, the situation in Brazil is also interesting for the way in which the use of AI in the service of justice is managed. Since 2020, another resolution of the Conselho Nacional de Justiça, Resolution 332/2020 of 21 August, adopts a fairly permissive and decentralized approach on this point, which recognizes the initiative of the courts themselves to develop their own AI tools to support their tasks, while subjecting them to certain requirements or safeguards.^[202] Foremost among these are, of course, respect for fundamental rights,^[203] data security and protection^[204] and non-discrimination, which includes the duty to discontinue the use of an AI system when it becomes apparent that it is biased and that the bias cannot be corrected.^[205] Transparency is also ensured, which includes, inter alia, documentation of identified risks, the possibility to identify the reason, in case of harm caused by the AI tool, and the provision of satisfactory and verifiable explanation by a human authority in relation to any proposed decision presented by the AI model.^[206] The latter is associated with the requirement for human judicial oversight in those systems that allow for the production of judicial decisions (Art 19).^[207]

11.1.4 England and Wales: The Online Civil Money Claims

175. In the United Kingdom the creation of online courts has been the subject of political and academic discussion for some time now, with plans and studies taking place over the years.^[208] At the present time, the approach seems to be more modest: instead of creating a genuine online court, the government decided to adopt an approach through which it would introduce digitized forms of process for procedure in the County Court.
176. The result, for the time being, has materialized in the Online Civil Money Claims (OCMC) Pilot, regulated in Practice Direction 51R^[209] and applicable between 7 August 2017 and 1 October 2025. The aim is to experiment, on a test basis, an online process with a view to extracting information and experience to move towards wider digitization.^[210] To that end, a new Online Procedure Rule Committee (an advisory non-departmental public body) was set up in 2022 to create rules governing the practice and procedure for specific types of online court and tribunal proceedings for civil claims, family disputes and disputes in the tribunals justice system.^[211] The Committee has not produced tangible results so far. 
177. The OCMC applies with the support of a specific platform, the OCMC Website, which is to be used to implement electronic communication. A claim is suitable to be dealt with under the OCMC if some conditions are met:^[212] in short − nuances and exceptions are foreseen − monetary claims have to be involved, not for personal injury, and not exceeding the amount of GBP 25,000 or GBP 10,000 (including interest), depending on whether the parties will be assisted by a legal representative or not.
178. Practice Direction 51R regulates in great detail a procedure that is very special and that only sporadically and residually refers to the Civil Procedure Rules. Despite its name, the procedure that has been designed is not completely dematerialized (ie, it is not 100% online): rather, the regulation focuses on channelling the parties' communication with each other and with the court electronically (e-filing and e-service, although in some cases and with regard to some litigants without digital skills or equipment, the means of communication will continue to be traditional mail).
179. The procedure is only fully conducted in accordance with the provisions of the OCMC when a judgment on admission, a settlement agreement or a default judgment is reached, ie, when there is a consensual agreement or when the defendant’s opposition is not openly expressed. This explains why the procedure is not normally under the control or direction of a judge but in the hands of a ‘legal adviser.^[213] Its essence, therefore, is to channel communication between the parties that can lead to a solution that settles the dispute without the need for a trial on the merits. Thus, the process ‘derails’ and falls outside the OCMC track and is transferred to an ordinary court to follow the ordinary course when the parties do not reach an agreement (unless they are legally represented, in which case a hearing will be held before the same court, but it will not be necessarily a remote one).
180. In view of the description above, it could be said that it is not a particularly significant model. However, at least from an outsider’s point of view, there are several interesting elements of the OCMC that allow it to be presented as an example of a transition towards the notion of an online court, ie, as something more than a traditional court carrying out its ordinary activity with the support of advanced IT tools.
181. Firstly, the design of an ad hoc procedure should be highlighted: the English legislator has considered that a generic ‘functional equivalence clause’, such as those seen in other systems analysed, is not sufficient. It is assumed, therefore, that online courts need tailor-made online proceedings.
182. Secondly, and closely related to the first point, it should be noted that the regulation of the procedure in Practice Direction 51R is hyper-detailed − one might say to the point of exhaustion −: an infinite number of scenarios are identified and meticulously regulated, combining the possible reactions of the defendant and the counter-reactions of the plaintiff in such a way that no hypothesis is left without a solution. It seems to have been conceived not so much by a traditional procedural legislator, but by a computer programmer who describes in the form of a provision what they themselves imagine as windows, screens and boxes in an application and on a platform.
183. A language is also used that is not excessively technical or legal (it is more user-friendly). However, precisely because of what has just been pointed out − detail and extension of the rules that make up Practice Direction 51R −, it is only really manageable for citizens if they access its content in a mediated manner, through the website and the platform (if the addressees of the OCMC had to read Practice Direction 51R directly, they would not have the feeling that their Access to justice was being improved, of course).^[214] This changes the focus of the legislative technique, which is not necessarily thinking of a citizen who reads the law, but of a citizen who uses the application and the website designed by the law to access the relevant information and navigate the procedure autonomously and securely.
184. Finally, it is important to underline the approach of the procedure towards consensual conflict resolution, which is a feature closely associated with the notion of ODR and which allows for a procedural management that relieves judges of work, as it can be entrusted to other persons (in this case, the ‘legal advisers’).
185. In addition to the OCMC, England and Wales have very recently dealt with the use of AI in courts, following a soft law approach. On 12 December 2023, the Courts and Tribunals Judiciary published a Judicial Guidance document, entitled Guidance for responsible use of AI in Courts and Tribunals.^[215] The document aims to assist judicial office holders in relation to the use of AI. On the one hand, it identifies risks and issues, and provides suggestions for minimizing them. On the other hand, the document includes potential (admissible) uses, recalling the judiciary’s overarching obligation to protect the integrity of the administration of justice.
186. The guidance is focused on seven main areas of recommendation: 1. Understand AI and its applications; 2. Uphold confidentiality and privacy; 3. Ensure accountability and accuracy; 4. Be aware of bias; 5. Maintain security (eg, using work devices and work email address to use AI tools); 6. Take Responsibility. [The Guidance reminds judicial office holders that they are personally responsible for material produced in their name, even if an AI systems was used. But it also acknowledges that generative AI could be ‘a potentially useful secondary tool’ in judges’ preparatory work to produce a judgment]; 7. Be aware that court/tribunal users may have used AI tools (some indications that work may have been produced by AI are included)
187. In addition, indications are provided in distinguishing potentially useful tasks and AI performed tasks that are not recommended. Among the first ones (potentially useful), the following are mentioned: summarising large bodies of text (taking care to ensure that the summary is accurate), writing presentations, and composing emails and memoranda. The Guidance, however, does not recommend using AI tools to carry out legal research or legal analysis.
188. The main goal, therefore, is to guide ‘institutional users’ of AI systems and not to establish clear rules. It is probably just a first step, where the focus on the rights and safeguards of litigants is secondary: they are to be considered in an indirect manner, as a consequence of the recommendations and the rationale lying behind them.

11.1.5 Spain and its ‘Data-Oriented Justice’ Programme

189. A final example of these various digital transition formulas is offered by the Spanish judicial system following the reform carried out in 2023 to further digitize justice (with the Act regulating the use of ICT in the justice system,^[216] in force since 20 March 2024. In Spain, e-filing and e-service have been operational for almost two decades and have been mandatory since 2015, with the aim of streamlining case management and eliminating paper from the process – although in many cases it was and still is necessary to serve the defendant with a paper copy of the statement of claim and supporting documents. During the pandemic, moreover, a provisional regulation was approved that encouraged the remote holding of oral hearings^[217] and which has been maintained, with some changes, after the reform of 2023, which aims to dematerialize the judicial system as much as possible. With the new regulation, it is in the hands of the court to decide whether the preliminary hearing and the trial are to be held in person or virtually (Arts 414.2 and 432.1 of the Spanish Code of Civil Procedure) and the right is recognized for parties, witnesses and experts to testify by videoconference if they reside outside the place where the trial is held, unless the judge justifiably requests their presence (Arts 129bis and 137 bis of the Spanish Code of Civil Procedure);^[218] in many cases, therefore, it is possible for proceedings to be conducted entirely online, even if the court remains offline and even if, in fact, that same court may be conducting in parallel other proceedings in which all or some of the hearings are being or have been held in person. In this respect, therefore, nothing distinguishes the Spanish evolution from what is taking place or will take place in many other jurisdictions in the coming years. However, the reform of the Spanish system in 2023 is interesting for two additional reasons, which have a certain disruptive impact on progress in the digitization of justice.
190. Firstly, the notion of ‘data-oriented justice’ is openly embraced: the tools and platforms that are developed to support the e-management of the case must be designed to be able to extract reusable data from them. According to Art 35 of the Act, the systems used by the administration of justice must ensure the input, incorporation and processing of information in the form of metadata, in accordance with common schemas, and in common and interoperable data models that enable, simplify and support various purposes. Among them, we can now mention the search and analysis of data and documents for jurisdictional, organizational and statistical purposes or the publication of information on open data portals (in the service, thus, of dispute prevention). But this data collection is also intended to be used for the production of automated, assisted and proactive judicial and procedural acts, especially for the application of artificial intelligence techniques in support of the judicial function, the conduct of proceedings and the definition and implementation of public policies relating to the administration of justice. This legal option clearly shows that the possibilities offered by e-justice go beyond the simple electronic conduct of proceedings.
191. The new Spanish regulation is equally interesting, with regard to the above, because it expressly allows for the use of Artificial Intelligence tools, aimed at automating as far as possible the conduct of proceedings and assisting judges and prosecutors in their decision-making tasks, while at the same time imposing certain limits. In this vein, the new Act has expressly admitted making recourse to AI technology in support of a swifter development of court proceedings, distinguishing between ‘automated’, ‘proactive’ and ‘assisted’ activities.
192. (a) ‘Automated’ activities are defined as procedural activities carried out by a computer system without the need for human intervention.^[219] They are foreseen mostly for simple tasks related to the management of electronic court files (eg, numbering or paging documents, generating copies or certificates, declaring that a decision is final because it has not been appealed within the legal time limit).
193. (b) Automated actions are labelled as ‘proactive’ when they are self-initiated by the system, without human intervention, taking advantage of the information in an electronic judicial file for a specific purpose,^[220] such as generating a notice that is automatically served on a party.
194. Automated and proactive activities aim to optimize the internal management of the court’s more bureaucratic tasks, although even the most ‘innocent’ administrative task may end up having an impact on the parties. Therefore, the Act imposes three requirements on these automated and proactive activities:

— They shall all be identifiable as such, traceable and justifiable.

— It shall be possible to carry out the same actions in a non-automated form.

— It shall be possible to disable, revert or render ineffective the automated actions that have already taken place.

195. These provisions reflect the general principles of ‘human supervision’ or ‘human in command’: AI-generated activities need to be traceable for the parties, in order to allow them to react against them and, where appropriate, to have them revoked or replaced in a non-automated manner.
196. (c) The third category are ‘assisted’ procedural activities, representing an additional step: the system generates a full or partial draft of a complex data-driven document, which may be produced by algorithms, and may form the basis or support for a court decision.^[221] The description is very abroad and may encompass, among other examples, the drafting of an order for payment in order for payment proceedings or of a judgment upholding the claim in a simple eviction case. Most decisions could, at least in theory, undergo this first level of AI-generated draft, if the system has the data needed by the algorithm to produce it (something that should be possible in a data-oriented justice system, where the documents in all electronic court files are able to provide this sort of additional information).
197. As the qualitative impact is bigger, the safeguards imposed are larger:

— These drafts shall not be generated in a proactive manner, even if this could be technically possible: the draft will only be generated at the will of the user.

— The draft, additionally, has to be fully editable, ie, they user shall be able to modify it freely and completely.

— In no case shall the draft in itself constitute a judicial decision, but shall require validation by the competent authority.

198. Here again the ‘human oversight’ and ‘human on command’ approach prevails, as a clear policy choice by the Spanish lawmaker. These provisions do not eliminate completely the risk – perhaps the temptation – that the competent authority might tend to validate algorithmically generated drafts without further analysis, but at least they link decisions to specific individuals, not to ‘computer systems’ for which no one would ultimately be held responsible. It is part of the (legal and ethical) responsibility of ‘users’ to rigorously review drafts before validating them. And it is imperative to avoid that something similar to the examples of lawyers sanctioned for providing documents produced with generative Artificial Intelligence incorporating non-existent decisions could happen.

11.2 More ‘Advanced’ Online Courts

199. The examples analysed so far show that there is no single way to move towards a deeper digitization of justice and that there are many different elements to be taken into account until a point is reached where it is no longer just a matter of doing digitally what has been done non-digitally up to now, going beyond the mantra of functional equivalence. In the following, the most established experiences of ‘online courts’ will be addressed in order to verify to what extent the advantages described in an abstract manner may be confirmed in reality. What is interesting about these experiences is precisely that they assume a different way of dealing with court proceedings because they have to be conducted digitally: this new approach opens the way to establishing genuine online courts and to conducting genuine online proceedings. To this end, the analysis will focus on the Chinese Internet courts and on the Civil Resolution Tribunal of the Canadian British Columbia.

11.2.1 China’s Internet Courts

200. China boasts of being the first country to have created internet courts. The interesting thing about the Chinese case is that it was the subject matter of the litigation (the internet) that foreshadowed the court. Indeed, the creation of online courts in China has its origins in the need to resolve disputes arising on the internet (if one prefers, arising from legal relations entered into on the Internet or from damages arising from activity carried out on the Internet). The uniqueness of the disputes and evidence has allowed the proceedings to be online and the courts themselves also to move online.^[222] 
201. The first online court was established in Hangzhou:^[223] it was set up in June 2017. It was followed in September 2018 by the Beijing and Guangzhou internet courts. In other places, special courts have not been created, although specialized sections or benches have been set up for this type of case.^[224]
202. Focusing on the Beijing Internet Court – for which there is more information available in English – it is possible to identify certain elements that are characteristic of these courts.
203. (a) An internet-centric scope of jurisdiction. Internet Courts are so not so much because they operate on the internet, but because their objective is to solve disputes related to the internet, in a broad sense: they are therefore presented as courts specialized in litigation whose common element is their relationship with the internet and, in an increasingly broader sense, with the entire sector linked to ICT developments.
204. The Beijing Internet Court – and the other two courts appear to have an equivalent scope – has jurisdiction to hear, under the criteria of territorial jurisdiction that would refer the case to the Beijing courts, the following categories of matters:^[225]

(1) Disputes arising from the conclusion or performance of online shopping contracts through e-commerce platforms;

(2) Online service contract disputes where the conclusion and performance are completed on the Internet;

(3) Disputes over financial loan contracts and small loan contracts where the conclusion and performance are completed on the Internet;

(4) Disputes over the ownership of copyright or neighboring rights of works published on the Internet for the first time;

(5) Disputes arising from the infringement of copyright or neighboring rights on the Internet of works published or communicated online;

(6) Disputes over Internet domain name ownership, infringement and contracts;

(7) Disputes arising from the infringement of the personal rights, property rights or other civil rights of others on the Internet;

(8) Product liability disputes arising from the infringement of the personal or property rights of others due to the defects of products purchased through an e-commerce platform;

(9) Internet public interest litigations filed by the procuratorial organ;

(10) Administrative disputes arising from administrative actions taken by administrative organs such as Internet information service management, Internet commodity trading and relevant service management;

(11) Other Internet civil and administrative cases designated by the people's court at a higher level.

205. This is admittedly limited, although the possible type of litigation is becoming increasingly broad and includes e-commerce (sales and purchases, defective products), internet services (such as online music or video streaming, but also internet loans), copyright in works that are published or distributed on the Internet, domain names and cyber torts, among others. This is allowing these courts to be among the first to resolve particularly novel issues, ^[226] which also include the world of AI: thus, in February 2024 the Guangzhou Internet Court ruled on the possibility that a platform offering Generative AI may have infringed copyright, not only by using data and images from a content creator, but also by offering results very similar to those offered by the latter.^[227] In fact, it is not hidden that the creation of these courts pursues to a large extent a strategic political goal, ‘becoming a powerful country in science and technology, as well as law-based governance of cyberspace’.^[228]
206. (b) A clear state presence: they are not presented as something different or alternative to state justice, but rather as an improvement, an evolution or an adaptation of state justice to the needs of the new times. It is clear at all times that these are courts that are part of the Chinese judicial organization, composed of judges and staff of the ordinary Chinese judicial system.^[229] As they operate only at first instance, they are integrated into the organizational pyramid of Chinese courts for appeal purposes.
207. (c) An adapted procedural regime: the creation of internet courts has been accompanied by the adoption of special procedural rules, designed to meet the new procedural needs arising from the dematerialization of the process.
208. Initially, the Supreme People’s Court (SPC) had accompanied the creation of the Internet courts with three sets of online litigation rules, applicable exclusively to these three courts.
209. The fundamental one was the ‘Regulation on Several Issues Concerning the Cases Adjudication by Internet Courts’ promulgated in September 2018, applicable to the three Internet Courts in Hangzhou, Beijing and Guangzhou. They were followed by the ‘Implementation Measures of the Pilot Reform on Separation between Complicated and Simple Cases in Civil Proceedings’ promulgated in January 2020, applicable to online case adjudication, electronic document submission and electronic service of specific courts; and the ‘Notice on Strengthening and Regulating Online Litigation during the Prevention and Control of COVID-19 Epidemic’ promulgated in April 2020, applicable to cases where courts could not conduct court hearings offline when the epidemic was severe.
210. However, on 16 June 2021 the SPC promulgated a new set of procedural rules, the ‘Online Litigation Rules for People’s Courts’ (‘Online Litigation Rules’), intended to be applied not only by Internet Courts, but more generally by any court before which the parties opt for full or partial electronic development of the proceedings.
211. The Online Litigation Rules aim at embedding the online litigation technology into litigation proceedings in China. 
212. In the case of Internet Courts, their use is self-evident and highlights the clear move towards an ODR system, as all procedural activity is articulated through a multifunctional platform that incorporates multiple technological developments. Blockchain technology is used to make the platform more reliable: multi-party supervision, non-tampering, and easy traceability ensure the protection of trial data and the certification of electronic evidence.
213. Several elements of this electronic procedure are worth highlighting:
214. (i) The consensual settlement attempt as a stage of the process. As in most ODR mechanisms, the legal regulation and the platform incorporate the attempt at conciliation as a stage of the procedure; if this attempt is unsuccessful, then the platform activates the more ordinary dispute resolution stage.
215. This initial mediation stage is highly developed and integrated into the structure of the process.^[230]
216. Parties concerned file a request, which is assessed by a (human) judge. If the parties agree to mediate, the mediation system will be triggered. The first steps deal with the appointment and selection of the persons involved in the process: even if it sounds illogical, the trial team (professional judges) will be first appointed, according to the relevant provisions to distribute and allocate cases; the trial team will select the mediatorial judge, again pursuant to the relevant provisions. The mediatorial judge, along with the parties, will select the mediation organization which, in turn, will appoint the mediator. In this way, mediation is clearly under judicial control and its incorporation into the process is more justified. Once mediation has started, it can have two outcomes.
217. If mediation is successful, the parties and/or the mediator will inform the mediatorial judge of the result. If the judge confirms the result, a draft agreement will be created and, once signed by the parties, they will submit an application to withdraw the lawsuit.
218. If mediation is unsuccessful, the mediatorial judge will be as well informed of the outcome and, if he/she confirms the result, the case will be referred to the judicial system to follow the ordinary trial procedures.
219. (ii) The possibility that the hearing of the parties does not take place in a concentrated (synchronous) manner, but asynchronously.
220. Pursuant to Art 14, if all parties agree to exchange evidence online asynchronously, the court will grant them a period where they shall log into the litigation platform, review and present examination opinions on the evidentiary materials that have been uploaded to the litigation platform.
221. But, more significantly, Art 20 must be taken into account: instead of holding an online hearing, the parties may record their oral statements and upload the video to the litigation platform within a designated period. This possibility, however, only applies for small claims and summary civil cases, if they meet three conditions: (1) all parties have difficulty participating in online trial simultaneously; (2) all parties agree; and (3) there is no dispute among the parties over the main facts and evidence of the case. In fact, the rule is rather narrower in scope, as it is intended to allow for asynchronous trials in which only legal issues are discussed, but in which adversarial taking of evidence is not required. The important thing is that this rule also assumes that the adversarial taking of evidence, which is necessary for it to be reliable, requires – at least for the time being – the simultaneous interaction of the parties – its synchronous character, to put it in the new terminology.
222. (iii) A strong support for Artificial Intelligence tools when developing many procedural acts:^[231]
223. On the one hand, for the identification of the parties and the signing of documents: the parties can identify themselves through facial recognition, for which they can simply use the camera of their mobile phone; if a document needs to be signed, an online electronic signature system allows for this, through the generation of QR codes.
224. On the other hand, for the drafting of documents. A system of pleading automatic generation helps the parties to write their pleadings, by means of structured questions designed according to the type of cases. A voice recognition in real time system transcribes automatically oral activities and generates court records. And, especially, an AI assistant is able to automatically generate the first draft of the judgment, ‘according to the transcript of the trial and the rules of the case’.
225. Finally – and always according to the BIC website – the platform offers a ‘Litigation Risk Assessment’, that is, an ‘independent’ assessment of the probability of winning a lawsuit based on the basic facts entered by the parties.
226. Some conclusions: Experience is still recent, and information and data are still scarce, but it seems clear that the Internet Courts that China is promoting fit quite clearly into the notion of Online Courts and show where civil justice may evolve in the future:
227. The court is dematerialized as a place for the parties and for the conduct of the proceedings: they do not need to go to a specific venue in order for the process to be fully developed. However, the court as such still has a physical seat, where the judges and other court staff are located. Nor does the ‘human materiality’ of the court disappear, whose members are not replaced by machines – even if they are assisted by them. Moreover, although the court is dematerialized for the parties, it is still assigned a territorial scope of jurisdiction: internet courts still have specific territorial demarcations and litigation has to be linked to those demarcations. It is clear that this may change in the future, but it is also clear that a hypothetical ubiquity of the court does not define what an online court should be.
228. The procedure, as a tool, is becoming more technological and adapting to the reality of the disputes it has to resolve, which have a clear technological background. However, the evolution in Chinese law also shows that digitalization, initially promoted for these courts, can be generalized and applied to any dispute.
229. The prior attempt at mediation or conciliation is more naturally integrated into the structure of the procedure. It is not a matter of going to mediation first, in a place and before a structure other than the court, which can be approached later, if mediation fails. The process starts before the court, only once and in only one (electronic) venue, so that the attempt at mediation becomes a step in the process, not a prerequisite for it –which is often perceived as an obstacle that slows access to justice. In addition, the development of the entire process online facilitates the interrelation of the court with the institution managing the mediation and with the mediator.
230. The use of advanced technology and AI tools aims to promote procedural efficiency and, undoubtedly, data-driven justice, allowing the information generated in the procedure to be used for strategic and legislative policy purposes. In any case, the cautions regarding the advantages and disadvantages of AI in the field of justice make as much sense in these courts as in offline courts.
231. These courts, finally, are clear proof that digitizing justice does not necessarily mean privatizing it: Chinese internet courts are openly state courts, in which the presence of state power is evident and constant. Instead, they have adapted the forms of manifestation of public power to the online context.

11.2.2 The Canadian Experience and the British Columbia Civil Resolution Tribunal

232. Online courts also seem to have become an everyday reality in Canada. The most paradigmatic example − although not the only one^[232] − is provided by the British Columbia Civil Resolution Tribunal.^[233] It was created in 2012 through the Civil Resolution Tribunal Act^[234] and started operating in 2016, becoming Canada’s first online court. According to the data provided by the Tribunal on its website, by 5 September 2024, the Tribunal had rendered more than 9000 decisions (the vast majority of which were final decisions), which is indicative of its clear establishment in the dispute resolution landscape in this Canadian province.
233. Unlike what has just been seen with the Chinese Internet Courts, the Civil Resolution Tribunal (CRT, hereinafter) is not a specialized body for resolving disputes related to the Internet or new technologies. Rather, it offers itself as a mechanism to improve access to justice in disputes that, for the most part, take place offline.
234. More precisely, the Civil Resolution Tribunal has the authority to resolve most of the following claims:^[235]

— Vehicle accident claims including entitlement to accident benefits and Insurance Corporation of British Columbia’s assessment of responsibility for an accident.

— Small claims up to 5,000 Canadian dollars.^[236]

— Strata property claims of any amount.^[237]

— Claims of any amount about societies incorporated in British Columbia, and housing and community service cooperative associations.

— Intimate image protection claims.

235. It should be noted that the CRT is not a real judicial body (it is not a court), but something different, an administrative body specialized in dispute resolution (a tribunal), composed of persons who are not judges, but are appointed by the Lieutenant Governor of British Columbia.^[238] In fact, the tribunal’s decisions are subject to ‘judicial review’^[239] and not to a genuine system of appeal. This is a difference that may be relevant from the perspective of what the judicial function is, especially if viewed through ‘continental’ eyes. Be that as it may, the CRT is publicly presented as ‘part of the British Columbia public justice system’. And, in any case, it is a public body: what it offers, therefore, is ODR, and public ODR.
236. The online character of the Tribunal, on the other hand, is not clear from a simple reading of the Act that regulates it. The key for the British Columbia legislator seems to be the use of electronic communication tools: pursuant to Sec 2(2)(c) CRT Act,

The mandate of the tribunal is to provide dispute resolution services in relation to matters that are within its authority, in a manner that […/…] uses electronic communication tools to facilitate resolution of disputes brought to the tribunal.

237. However, when it comes to the regulation of the proceedings, the use of electronic communication tools is presented as a possibility for the Tribunal,^[240] although it seems that it can in any case impose the use of electronic communication tools on the parties.^[241] 
238. The mere use of electronic communications does not, of course, simply turn a court into an online court. It is conceivable, however, that in 2012, when the CRT Act was passed, and even in 2016, when the Tribunal became first operational, this expression was intended to convey the idea that all acts of the proceedings could be conducted online, without the need for the parties or the tribunal members to physically come to the seat of the Tribunal. Today, the CRT operates through a platform and advertises itself as an institution that is accessible online every day and every hour. The only point in the proceedings that does not necessarily take place online is the first service on the defendant (‘Serving the Dispute Notice package’, in the terminology of the CRT), as claimants are usually instructed to do this themselves and, among the methods for doing so, the use of e-mail is only one possibility (not even the most recommended) and, in any case, it is done outside the CRT platform.
239. The CRT has its own special procedure, developed in the CRT Act. A reading of the act, at least in my opinion, leads to the conclusion that the existence of this special procedure does not derive from the online nature of the process, that is, it is not a response to the need to regulate a digital process − unlike, therefore, what was seen with the Chinese internet courts. Instead, the process is special because it is intended to encourage ‘a collaborative approach to resolving disputes’, ‘rather than the traditional adversarial litigation model’^[242] and to reinforce the role of the court as a public instrument to provide dispute resolution in a manner that is accessible, speedy, economical, informal and flexible^[243], which also explains the general rule that no lawyer is required^[244]. These objectives are clearly visible when analysing the structure of the process.
240. First of all, and even before the complaint is filed, the CRT platform offers an online Solution Explorer, providing free legal information, not legal advice, based on the answers given to the (simple) questions asked about the dispute (in a free, anonymous and confidential manner). The Solution Explorer offers template letters that the prospective claimant can send to the other party in order to solve the dispute on their own. Finally, the Solution Explorer also classifies the dispute and leads the claimant to the right CRT online application form, in order for them to start the proceedings.
241. Once the application is submitted, the proceedings before the Tribunal are divided into two main phases,^[245] the case management and the tribunal hearing.
242. In the case management phase, resolution by agreement between the parties is facilitated and preparations are made for the tribunal hearing should one be required.^[246] This phase is in the hands of a case manager, who is a tribunal officer. The platform itself first offers an online negotiation tool, which allows the parties to agree on the best solution for the case. If the negotiation through the platform is unsuccessful, the case manager will get involved to help the participants reach an agreement (facilitation).
243. If the dispute is not solved in the case management phase the tribunal hearing phase will be opened, in which the dispute is heard and the tribunal gives a final decision to resolve the dispute. CRT decisions − including those upholding the agreement reached by the parties − can be enforced. They may be challenged by means of judicial review. The CRT publishes all final decisions – except decisions for intimate image protection orders − on its website, where it also offers a search tool. It should be noted, however, that these decisions are not binding as precedents for other cases.
244. As noted, the approach is clearly different from that offered by China’s Internet Courts. The emphasis here is on the user-friendly solution and the flexible development of the proceedings. In the CRT, therefore, the online dimension is not presented as a first step in a broader ambition to digitize justice. Its online nature is, to a certain extent, secondary or instrumental: it is at the service of that flexibility which, one senses, contributes to facilitating a negotiated settlement of the dispute. The same is true of the public nature of the tribunal: pragmatism predominates, and the emphasis is on how the dispute will be resolved (quickly and, as far as possible, consensually), not so much on who will resolve it (hence the secondary nature, in the system, of the concept of the CRT as a ‘tribunal’ and not as a genuine ‘court’).
245. It can be concluded, in short, that the notion of online court is quite flexible and can be adapted to the procedural culture of each country, ie, to the values that each country attaches to dispute settlement mechanisms. In particular, the CRT reflects the British Columbia legislator’s interest in providing a simple channel for the resolution of more everyday disputes, with a focus on consensual settlement, but not at any price: at all times the users are informed that the absence of agreement is not a negative thing per se, but rather opens the door to a decision on the merits by the tribunal, which may end up giving them the whole reason (without the concessions of a negotiated settlement).

12 Demands and Challenges for a Just Transition to Online Justice

246. Online courts aspire to be the next step in the development of justice systems, insofar as they aim to represent the best of two worlds that, to a certain extent, would not be fully compatible.^[247] (i) As ODR systems, online courts aim to bring the efficiency associated with digitization;^[248] the development of software with the potential to increase the capabilities of the judicial system seems, in addition, unstoppable – at least as long as it is profitable. (ii) As genuine courts, online courts bring justice, as something that goes beyond the mere resolution of individual disputes and is linked to the social legitimization of the judicial system as a whole.
247. Less intense digitalization, focusing on the procedural dimension (e-filing, e-service, e-case management) also brings efficiency and justice and is more 'affordable', insofar as it does not require such profound changes as those associated with the establishment of genuine online courts. It is therefore worth asking what the incentive for national legislators would be to go down the path of creating online courts.
248. Private ODR mechanisms compete in the market precisely as an effective alternative to state justice and as an added value of online procurement platforms and large companies: many consumers prefer to purchase goods and services from companies and/or on platforms that provide them with ODR mechanisms to resolve potential disputes. As far as these private ODR mechanisms are concerned, the regulatory challenge consists of ensuring the existence of a real will on the part of those involved in their use, in order to avoid situations of abuse and imposition.^[249]
249. This competitive incentive does not really exist in the case of state justice systems: it is very forced to state that they compete with ADR mechanisms and private ODR systems. However, there are several reasons that can be put forward by legislators to justify the additional effort involved in the transition to a judicial system in which online courts play a greater role.
250. On the one hand, there are certain ‘liquid expectations’,^[250] especially among the digital natives, who demand more digital governance from the public authorities, which also includes the justice system. It seems reasonable to expect the judicial system to be a reflection of the society it serves; and that society is increasingly digital, which means, among other things, that many citizens aspire to have their disputes − at least some of their minor disputes − resolved online, in a manner analogous to other aspects of their relationship with the public authorities for other purposes − eg, paying taxes or claiming social security benefits.
251. In addition, there is the argument of ‘enhanced efficiency’ or, if preferred, the added value in efficiency provided by online courts: they bring about more efficiency than digitized offline courts. Simply being satisfied with progress in the managerial dimension, when technological advances allow for a much greater qualitative leap forward, would mean failing to keep up with the times.
252. And, above all, it is argued with the utmost forcefulness that a deeper digitalization such as that provided by online courts and online proceedings ensures a higher level of access to justice, for people and for claims that, in a different context (of no digitalization or of a more tenuous digitalization), would not reach the state courts.^[251] Efficiency and digitalization are therefore allied in the political-legislative discourse to link online courts, online proceedings and access to justice.
253. Whether this ‘triad’ deserves veneration or is merely an advertising slogan has clear ideological connotations but also depends to a large extent on the actual delivery that citizens receive: unfulfilled promises, whether due to lack of means or lack of technological capacity, are one of the greatest dangers facing legislators.
254. Efficiency and digitization cannot come at the expense of quality: the access to justice that is promised only deserves that label if it meets certain standards, traditionally encompassed in the notion of procedural safeguards. Digitization is not a value in itself, which can be imposed on any other consideration, but rather a tool at the service of another purpose, which is the one that really matters, the resolution of the dispute in a legal manner, in the interests of the litigant who is in the right and as a way of socially legitimising the validity of the legal order. A just transition towards an intensification of online courts and online proceedings should not be approached without responding to certain demands and facing certain challenges, all of which are linked to the idea of quality.^[252] Comparative experience with virtual hearings, the various forms of transition to a more digital justice system and existing examples of more digitized court proceedings at least serve to identify them.
255. a) Online courts are associated with increasingly automated procedures: in online proceedings the passage from one stage of the process to the next can be managed automatically by a computer system, without the need for a specific person (the judge, the court clerk, a court official) to keep an eye on and drive the process forward. However, adequate human supervision must be foreseen in any case: a court system in which the only humans are judges and in which the only function of the judges is to resolve the merits of the dispute would not be acceptable. Even if the process is automated, there must be people (humans) responsible for its proper functioning who have expertise as judges, court clerks or court officials. These will, of course, need to be joined by experts in technical matters − currently absent from the ordinary staff of our courts − but they should not replace them.
256. b) For online courts and online proceedings to function effectively as an advanced manifestation of ODR, the computer system must have the data it needs to operate: in other words, the system must be able to feed on the information contained in the parties' submissions – including, why not, videos or recordings that form part of an asynchronous remote communication, as envisaged in the Chinese Online Litigation Rules. These documents or procedural ‘objects’ have to provide metadata that can be exploited − as demanded by the Spanish legislation; thus, regarded from the outside, online proceedings before online courts require the use and the setting of forms that, in turn, are supported by technical systems that extract the necessary information from them. This in turn makes it necessary to ensure compliance with the rules on personal data protection – an issue on which there is no need to elaborate further at this point. The need to extract metadata from procedural objects and, in turn, the need to work with standardized forms to enable such metadata collection will eventually influence the way parties’ submissions and courts’ decisions are structured.
257. c) A more digitalized procedure is an opportunity to integrate the attempt at consensual resolution into the structure of the process itself, as seen in the Chinese Internet Courts and the Civil Resolution Tribunal of British Columbia. This, in turn, helps to shift the focus away from the constant discussion about the admissibility and/or desirability of imposing mediation as a pre-trial step − criticizable as costly and dilatory. The regulation of online proceedings before the online courts may open the door to a more cooperative structure. At the same time, the integration of the conciliation or mediation phase within the process itself helps citizens − especially the most vulnerable − to understand that they do not have to settle for whatever is offered to them in a negotiation, as the decision on the merits in accordance with the law is always available to them without changing channel or platform.
258. d) A more digital justice system will undoubtedly have to rely on AI tools: at this stage of development, it seems difficult to deny this. However, all the precautions alluded to in supranational texts and already echoed by some national legislators, such as the Spanish one, must be imposed, especially as far as human control is concerned.^[253] On this point, I must now refer to chapter 6 of this segment.
259. e) The transition to a more digital justice system is forcing a different way of legislating or, if preferred, to have different laws^[254] − as evidenced by the regulation of the OCMC in Practice Direction 51R in England and Wales. There is a need for technical rules, which involve extra-legal terms and concepts, but through which the architecture of the system is designed, as they regulate the way in which the abstract design of an online process is ultimately reflected on a computer screen or in an application managed from a smartphone or tablet. Of course, there is still a need for ‘classical’ procedural rules, intelligible to lawyers and defining the safeguards and the ‘rules of the game’ according to which to define procedural strategies, although these more classical rules cannot help but ‘imagine’ their transfer to an environment that is virtual by definition, not physical nor virtual as a functional equivalent of a physical one. This aspect of legislative technique is, in my view, particularly important, although it has not been addressed as such. On the one hand, laws must always be comprehensible to their addressees, so that the technological nature of their content must not be a pretext for their obscurity. On the other hand, it is necessary to avoid procedural laws that, in an excessive and unjustified way, refer their development − ie, their effective operation − to infra-legal rules or to administrative decisions − eg, made by technical bodies or expert committees − that do not have democratic endorsement. It should not be forgotten that procedural laws are the development of the fundamental right to effective judicial protection.
260. f) A more digital justice can only be fair if it pays due attention to the shape of the virtual space in which the proceedings take place. Procedural activities move from buildings to platforms, which have to be user-friendly and simple to handle for any litigant – as shown, for instance, by the Singapore experience. The setting for virtual trials has to be configured in a way that minimizes the inconvenience of non-contact as much as possible. Trials in the metaverse, for the time being at least, should be approached with great caution: the use of avatars distorts the perception of the human nature of disputes, proceedings and their participants.^[255]
261. g) Digitization entails a dependence on technology which, in turn, obliges the legislator to be very cautious, from several points of view, including at least the following:

(i) There must always be an escape valve that allows all or part of a judicial process to be conducted in a non-digital way, if necessary.

(ii) A situation of dependence on external technology providers, usually private companies,^[256] who promise a lot and do not always deliver, must be avoided.^[257]

(iii) The legislator must adapt the regulation to the real technological capacities of each moment, that is, making sure that the system at its disposal is able to carry out the services that the law foresees. ‘Technological fantasies’ should have no place in procedural law.

(iv) Systems should have tools to detect possible malfunctions.

262. h) Finally, legislators who consider moving towards the creation of online courts and the regulation of online proceedings have to face at least three decisions of the utmost relevance, which have a rather strategic significance, ie, they do not condition the admissibility of online courts in terms of justice, but in terms of political appropriateness.
263. Firstly, it is up to national legislators to establish the scope of action of these courts and to decide whether they are only offered to litigants for small disputes − as is the case, roughly speaking, with the CRT in British Columbia or the OCMC in England and Wales −, whether they are limited to disputes arising in digital environments and linked to that sector − as in the Chinese internet courts − or whether they are attributed a much more general potential. On this point, one thing must be clear: in the abstract, online courts should be able to resolve any type of dispute, since elements such as the economic amount or the legal complexity of a claim are unrelated to the online/offline variable. Therefore, on this issue, it is to be expected to act on the basis of pilot and experimental programmes, normally confined to small claims or technological disputes, probably because they are the ones where the (r)evolution is most easily justified: to give access to justice to smaller cases and to respond to the expectations of the players in the digital economy. However, in doing so, it is equally important to avoid these two possible side effects: for small disputes, the perception that online proceedings before online courts are of poorer quality than traditional ones; for digital-related disputes, and conversely, the perception that only the technological world benefits from the advantages associated with digitization, even though they could be projected to many other areas.
264. In regulating online courts and online proceedings, legislators also face the challenge of defining the role of lawyers and other legal professionals.^[258] Online courts and online proceedings tend to present themselves as more favourable environments for unrepresented litigants,^[259] especially if they provide ‘online guidance’.^[260] Added to this are the possibilities opened up by certain AI tools to offer something akin to legal advice. On this issue, again, I refer to what is raised in chapter 6 of this segment.
265. Finally, a last general issue shall be pointed out: the need to regulate the coexistence between ordinary courts and online courts and, ultimately, the need to consider whether online courts are bound to lead to the disappearance of online courts. In principle, online courts are genuine state courts, and it would therefore be legitimate for legislation to stipulate that they are the only courts available in their sphere of jurisdiction − and hence that proceedings must be also conducted online proceeding. Assuming that adequate access to the online courts is granted for litigants − through assistance and by making the necessary means available to them − this would be a legitimate option, compatible with the standards of access to justice that stem, eg, from Art 6(1) ECHR or Art 47 CFREU. It is also possible, of course, for the legislator, especially in an initial, more experimental phase, to subject their jurisdiction and their operation to the will of the parties and consequently to present them as an alternative for the willing parties – or, at least, for the willing claimant. In this, of course, the economic, social and cultural context of each country will be a determining factor. In the very long term, of course, it is conceivable that most courts will be online courts, provided that in any case, as stated above, an escape route is guaranteed if this proves to be indispensable. How desirable and convenient this image of the future will be, especially for those who are still ‘offliners’, is another question.

Abbreviations and Acronyms

Art	Article/Articles
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
CJEU	Court of Justice of the European Union
ed	editor/editors
etc	et cetera
ECtHR	European Court of Human Rights
ECLI	European Case Law Identifier
eg	exempli gratia (for example)
ELI	European Law Institute
EU	European Union
ff	following
ICT	Information and Communication Technologies
ie	id est (that is)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
Sec	Section/Sections
UK	United Kingdom
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
UP
University Press
US / USA	United States of America
v	versus
vol	volume/volumes
ZPO	Zivilprozessordnung (German Code of Civil Procedure)

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Legislation

International/Supranational

Directive regarding the European Investigation Order in criminal matters, 2014/41 of 3 April 2014 (EU)

Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, 2016/343 of 9 March 2016 (EU)

European Convention on Human Rights 1950

Model European Rules of Civil Procedure 2020 (ELI / UNIDROIT)

Regulation on cooperation in the taking of evidence in civil or commercial matters, 1206/2001 of 28 May 2001 (EU)

Regulation creating a European Order for Payment Procedure, 1896/2006 of 12 December 2006 (EU)

Regulation establishing a European Small Claims Procedure 861/2007 of 11 July 2007 (EU)

Regulation laying down harmonised rules on artificial intelligence (Artificial Intelligence Act), 2024/1689 of 13 June 2024 (EU)

National

Civil Resolution Tribunal Act 2012 (British Columbia, Canada)

Código de Processo Civil 2015 (Code of Civil Procedure) (Brazil).

Ley de Enjuiciamiento Civil 2000 (Code of Civil Procedure) (Spain)

Online Litigation Rules of the People’s Courts 2021 (China)

Practice Note SC Gen 12 – Supreme Court – online court Protocol 2007 (New South Wales, Australia)

Practice Note Civ 1 of the Local Court of New South Wales 2024 (New South Wales, Australia)

Zivilprozessordnung (Code of Civil Procedure) (Germany)

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Cases

International/Supranational

Riepan v Austria, Case 35115/97 (ECtHR), Judgment 14 November 2000 [ECLI:CE:ECHR:2000:1114JUD003511597]

Marcello Viola v Italy, Case no. 45106/04 (ECtHR), Judgment 5 October 2006 [ECLI:CE:ECHR:2006:1005JUD004510604]

Jallow v Norway, Case 36516/19 (ECtHR), Judgment 2 December 2021 [ECLI:CE:ECHR:2021:1202JUD003651619]

Sakhnovskiy v Russia, Case 21272/03 (ECtHR-GC), Judgment 2 November 2010 [ECLI:CE:ECHR:2010:1102JUD002127203] para 98***

Ichetovkina and Others v Russia, Cases 12584/05 and 5 others (ECtHR), Judgment 4 July 2017 [ECLI:CE:ECHR:2017:0704JUD001258405] 

Bivolaru v Romania (no. 2), Case 66580/12 (ECtHR), Judgment 2 October 2018 [ECLI:CE:ECHR:2018:1002JUD006658012] 

Ramos Nunes de Carvalho e Sá v Portugal [GC], Cases 55391/13, 57728/13 and 74041/13 (ECtHR), Judgment 6 November 2018 [ECLI:CE:ECHR:2018:1106JUD005539113].

Dijkhuizen v the Netherlands, Case 61591/16 (ECtHR), Judgment 8 June 2021 [ECLI:CE:ECHR:2021:0608JUD006159116]

Commission v Breyer, Case C‐213/15 P (CJEU), Judgment 18 July 2017 [ECLI:EU:C:2017:563]

VP v KS, Case C-188/02 (CJEU), Order of 8 September 2022 [ECLI:EU:C:2022:678]

Sofiyska gradska prokuratura, Case C-760/22 (CJEU), Judgment 4 July 2024 [ECLI:EU:C:2024:574]

National

Case 4870-2004 (Constitutional Court, Spain), Judgment 16/2009, of 26 January [ECLI:ES:TC:2009:16].

Case 1232-2017 (Supreme Court, India), Judgment 26 September 2018 [10 SCC 628].

Ashwini Kumar Upadhyay v Union of India, Writ Petition P(C) No. 699-2016 (Supreme Court, India) Judgment 9 November 2023 [2023 INSC 991]

Case 8892-2020 (Constitutional Court, Chile), Judgment of 10 December 2020, <https://www.diarioconstitucional.cl/wp-content/uploads/2020/12/144270.pdf>

Case 3R149/22m [Oberlandesgericht Wien, Austria] Decision 7 July 2023 [ECLI:AT:OLG0009:2022:00300R00149.22M.0909.001]

Gould Elecs. Inc. v Livingston Cnty. Rd. Comm’n (US District Court, E.D. Michigan, Southern Division), Judgment 30 June 2020 [470 F. Supp. 3d 735 (E.D. Mich. 2020)]

Andrews v Autoliv Japan, Ltd. (UD District Court, N.D. Georgia) Judgment 27 January 2021 [No. 1:14-cv-3432 N.D. Ga. 2021]

Capic v Ford Motors Ltd (Federal Court of Australia) Judgment 15 April 2020 [2020] FCA 486.

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