Online dispute resolution mechanisms in civil and administrative court proceedings E-Book

Council of Europe

• Herausgeber: Council of Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 74

Veröffentlichungsjahr: 2021

Beschreibung

These guidelines, prepared by the European Committee on Legal Co-operation (CDCJ) and adopted by the Committee of Ministers of the Council of Europe on 16 June 2021, are designed to help the 47 member states of the Organisation to improve the functioning of their online dispute resolution mechanisms (ODR) in civil and administrative court proceedings, and to ensure that such mechanisms are accompanied by robust human rights safeguards, and that they are compatible with the key principles of a fair trial and effective remedy – Articles 6 and 13 of the European Convention on Human Rights – as set out in the case law of the European Court of Human Rights. This practical legal tool provides guidance in relation to fair procedure – access to justice, equality of arms, evidence, effective proceedings, delivery of the decision, right to a reasoned decision, enforcement of the decision and right to judicial review in cases involving purely automated decisions – to transparency in the use of ODR and requirements for hearings, as well as on specific issues such as cybersecurity and human rights protection, including personal data protection.

Leseprobe

 

ONLINE DISPUTE RESOLUTION MECHANISMS

IN CIVIL AND ADMINISTRATIVE

COURT PROCEEDINGS

 

Guidelines

adopted by the Committee of Ministers

of the Council of Europe

on 16 June 2021

and explanatory memorandum

 

Contents

 

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Guidelines of the Committee of Ministers of the Council of Europe on online dispute resolution mechanisms in civil and administrative court proceedings

(Adopted by theCommittee of Ministers on 16 June 2021 atthe 1407th meeting of the Ministers’Deputies)

Preamble

The Committee of Ministers,

Considering that the aim of the Council of Europe is to achieve a greater unity between the member States, in particular by promoting the adoption of common rules in legal matters;

Considering the necessity to provide practical guidance for policy makers responsible for designing online dispute resolution (ODR) mechanisms in the member States, with a view to ensuring that such mechanisms are compatible with Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, the “European Convention on Human Rights”);

Considering that these guidelines should aim at establishing a common framework and not at harmonising the national legislations of the member States;

Considering the need to respect the diversity of the legal systems of the member States;

Acknowledging the progress made by the member States in introducing online dispute resolution mechanisms in their legal systems;

Noting that developers of online dispute resolution mechanisms (whether public or private) may not be sufficiently aware that such mechanisms should be accompanied by robust human rights safeguards;

Highlighting the need for member States to ensure that such mechanisms are compatible with the key principles of a fair trial and effective remedy set out in the case law of the European Court of Human Rights, including the principles of oral hearing and equality of arms,

Adopts the following guidelines to serve as a practical tool for the member States, to assist them in adapting the operation of their online dispute resolution mechanisms to the provisions of Articles 6 and 13 of the European Convention on Human Rights and the principles developed thereto in the case law of the European Court of Human Rights, and invites the member States to disseminate these guidelines widely with a view to their implementation by those responsible for designing and implementing online dispute resolution mechanisms.

Purpose and scope

The guidelines apply to online dispute resolution (ODR) mechanisms used by courts. They provide guidance in relation to fair procedure, transparency in the use of ODR and requirements for hearings, special issues related to the ICT nature of ODR techniques and other issues not stemming from the jurisprudence of the European Court of Human Rights. They do not cover internal management of electronic case files by the courts or alternative dispute resolution (ADR) mechanisms, such as mediation and conciliation. However, member States may wish to extend their application to ADR if and where appropriate.

Definitions

For the purpose of these guidelines, the terms below have the meanings indicated:

i. Court

“Court” refers to a body within the concept of a “tribunal” under Article 6 of the European Convention on Human Rights, that is a body which:

– is established by law;

– is governed by a procedure prescribed by law;

– determines matters within its competence by issuing binding decisions;

– has full jurisdiction over the case;

– is independent and impartial.

ii. Online dispute resolution (ODR)

“Online dispute resolution (ODR)” refers to any online information technology (IT) used by a court to resolve or assist in resolving a dispute.

iii. Artificial intelligence (AI)

“Artificial intelligence (AI)” refers to a set of scientific methods, theories and techniques the aim of which is to reproduce, by a machine, the cognitive abilities of a human being.

iv. Information and communication technology (ICT)

“Information and communication technology (ICT)” refers to technology that provides access to information through telecommunications.

Fundamental principles

1. Member States should seek to ensure trust and confidence in ODR.

2. ODR should not create substantial barriers for access to justice.

3. Procedural rules which apply to court proceedings in general should also apply to court proceedings involving ODR, unless the specific nature of a particular ODR mechanism requires otherwise.

4. Parties to proceedings involving the use of ODR should be identified using secure mechanisms.

The guidelines

Fair procedure

Access to justice

1. ODR should be easily understood, affordable and user friendly so that it can be used comfortably by as many people as possible.

2. Parties should be informed about how ODR operates, how to file an application, how to monitor progress of the proceedings and how to access decisions.

3. Use of ODR should not be disadvantageous to the parties or give unfair advantage to one of the parties.

4. ODR should be designed and implemented in accordance with internationally recognised technical standards, in order to allow its use by as many people as possible with as much autonomy as possible.

5. The cost of court proceedings involving ODR should not be higher than those not involving an ODR element.

6. Parties should be notified when it is intended that their case will be processed with the involvement of an AI mechanism.

Equality of arms

7. Participation in ODR proceedings should not prejudice an individual’s right to participate effectively in the proceedings or their right to an effective remedy.

8. ODR proceedings should ensure an independent and impartial adjudicative process.

9. Parties to proceedings involving ODR should have knowledge of the materials in the case file, including those submitted by the other parties; they should have access to these materials and sufficient time and means to acquaint themselves with their contents.

Evidence

10. Fairness requires that parties to proceedings involving ODR should be permitted to present evidence in a manner that does not place them at a disadvantage vis-à-vis other parties.

11. Parties should have the opportunity to present their case and to contest evidence submitted by other parties.

12. ODR should respect the principles of legal certainty and protection of the legitimate expectations of the parties.

Effective proceedings

13. Implementation of ODR should aim to improve the effectiveness of the proceedings by allowing parties to participate without being physically present in court and by streamlining the whole process as far as possible.

14. Technical difficulties in the functioning of ODR should not prevent the courts, even for short periods, from examining cases and performing appropriate procedural steps.

15. Where national law provides that ADR constitutes a prerequisite for instituting court proceedings, including those involving ODR, this should not protract the dispute resolution process unnecessarily or result in a substantial increase in costs for the parties.

Delivery of the decision

16. The outcomes of the proceedings involving ODR should be transparent.

17. Any final decision reached using ODR should be made public in accordance with the jurisprudence of the European Court of Human Rights.

Right to a reasoned decision

18. Sufficient reasons should be given for decisions reached using ODR or with the assistance of ODR, in particular the decisions reached with the involvement of AI mechanisms.

Enforcement of the decision

19. The mere fact that the decision is a result of an ODR mechanism should not prevent it from being enforceable.

Right to judicial review in cases involving purely automated decisions

20. Where national law allows for purely automated decisions, such decisions should be open to review before a judge.

Transparency in the use of ODR and requirements for hearings

Transparency in the design and operation of ODR mechanisms

21. The design and operation of ODR mechanisms should be made transparent and explained in an intelligible manner using clear and plain language.

Public and oral hearings

22. The use of ODR mechanisms should guarantee appropriate ways to ensure public scrutiny of proceedings.

23. The use of ODR in courts should not in itself deprive parties of a right to request an oral hearing before at least one level of jurisdiction.

Other issues of transparency, including public scrutiny

24. Parties to proceedings involving ODR should be informed about any potential conflicts of interest related to the operation of an ODR mechanism.

25. ODR should be designed in such a way that all documents generated, including the final judgment and other decisions or notifications, are written in clear and plain language.

26. Procedural rules applicable to ODR should be transparent.

27. Parties to proceedings involving ODR should be aware of and have the ability to access information concerning the procedural rules applicable to ODR.

Special issues related to the ICT nature of ODR techniques

Cybersecurity

28. An appropriate level of cybersecurity of ICT products, services and processes facilitating ODR should be ensured in order to meet the requirements in Articles 6 and 13 of the European Convention on Human Rights and to ensure the necessary trust and confidence in ODR mechanisms.

29. The level of cybersecurity of ICT products, services and processes facilitating ODR should be considered appropriate when safeguards are provided against:

– unauthorised access to confidential data;

– the unwanted alteration or deletion of data;

–