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In the wake of an unprecedented period of mobile technology dissemination in developing countries, notably through the use of cell phones and other information and communication technology (ICT) innovations, it has become possible to use those technologies to eliminate or greatly reduce barriers to access to justice in those countries. This recent spread of mobile technology in developing countries has literally transformed communication habits. The World Bank estimates that there were 6.8 billion mobile cellular subscriptions worldwide in 2013.1 When it comes to the justice system, one of the biggest challenges or barriers for people living in developing countries remains physically accessing the justice system. In this context, one has to refl ect on the role played by mobile technologies and other ICT initiatives in providing a solution to the global problem of poor access to justice. For instance, with the mobile technologies available today, it is possible to use text messaging to inform clients of the date of their hearing because in some parts of the world people still have no postal address at which they can be reached, but they usually have access to a mobile phone. This chapter argues that the justice system should capitalize on this spread of mobile technologies and that cyberjustice, through the use of ICT, can reduce the costs and delays of the judicial process and provide beĴ er access to justice through the science of delivery.
15 ICT-Driven Strategies for Reforming Access to Justice Mechanisms in Developing Countries KARIM BENYEKHLEF, EMMANUELLE AMAR, AND VALENTIN CALLIPEL In the wake of an unprecedented period of mobile technology dissemination in developing countries, notably through the use of cell phones and other information and communication technology (ICT) innovations, it has become possible to use those technologies to eliminate or greatly reduce barriers to access to justice in those countries This recent spread of mobile technology in developing countries has literally transformed communication habits The World Bank estimates that there were 6.8 billion mobile cellular subscriptions worldwide in 2013.1 When it comes to the justice system, one of the biggest challenges or barriers for people living in developing countries remains physically accessing the justice system In this context, one has to reflect on the role played by mobile technologies and other ICT initiatives in providing a solution to the global problem of poor access to justice For instance, with the mobile technologies available today, it is possible to use text messaging to inform clients of the date of their hearing because in some parts of the world people still have no postal address at which they can be reached, but they usually have access to a mobile phone This chapter argues that the justice system should capitalize on this spread of mobile technologies and that cyberjustice, through the use of ICT, can reduce the costs and delays of the judicial process and provide be er access to justice through the science of delivery Two concepts—“cyberjustice” and “science of delivery”—that are frequently used in this chapter should be defined at the outset “Cyberjustice,” simply put, “refers both to the integration of information and communication technologies into dispute resolution processes and to the networking of all stakeholders in the informational chain for judicial cases.”2 With the networking of virtually all actors of the judiciary, cyberjustice contributes to an integrated justice system Cyberjustice initiatives include a wide range of actions such as community radio, text messaging, videoconferencing, digitization, and networking The “science of delivery” is a multidisciplinary approach aimed at gathering and distributing knowledge that countries can use to get World Bank, The Li le Data Book on Information and Communication Technology (World Bank 2013) François Senécal & Karim Benyekhlef, Groundwork for Assessing the Legal Risks of Cyberjustice, 7(1) Can J L & Tech 41, 44 (2009) 325 326 The World Bank Legal Review delivery in a specific local context.3 In the legal field, this approach explores “how law and justice concepts, tools and knowledge can be used to improve development delivery and help translate the values of voice, social contract and accountability into development impact.”4 The first part of this chapter makes the case that by using a methodology based on two pillars, modularity and collaboration (both comprising many different elements, which are explained throughout this chapter), ICT innovations can play an important role in providing effective access to justice in developing countries Since 2011, the Cyberjustice Laboratory, a nonprofit research center affiliated with the University of Montreal, has used this methodology to develop successful prototypes5 in the fields of online dispute resolution and modernization of judicial proceedings The second part of the chapter argues that the World Bank’s Global Forum on Law, Justice and Development and its partners, as well as the Community of Practice on Alternative Dispute Resolution (which operates under the auspices of the Global Forum), through their multidisciplinary approach, are effective platforms for developing ICT-driven strategies to modernize and reform mechanisms for access to justice in developing countries The second part also highlights how mobile technologies can have an impact on transitional justice,6 thereby illustrating how ICT initiatives can effectively improve access to justice This chapter thus provides food for thought about solutions to improve access to justice in developing countries and stimulate the use of ICT in the judicial process of those countries; this chapter does not try to offer precise solutions, because, as the modular and collaborative methodology points out, any solution must be tailored to the needs and circumstances of each country World Bank, Law, Justice and Development Week 2013—Concept Note, h p://siteresources worldbank.org/INTLAWJUSTICE/Resources/LJDWeek2013_ConceptNote.pdf Id These prototypes include an Online Dispute Resolution Platform; an Interface for courtroom management that allows the networking of all actors in the trial and allows them to control the courtroom; a digital agreement as to the conduct of the proceeding (Entente sur le déroulement de l’instance; EDI) in accordance with the rules of the Code of Civil Procedure of Quebec; the Metadata Cyberjustice Management, a tool that allows for the defining and categorizing of information being a ached to files generated during a hearing for the purpose of indexing this information; and finally, a Moot Court application, a case management system designed to allow the electronic filing of memoranda during Moot Court activities hosted by the Université de Montréal’s Faculty of Law For more information about the Cyberjustice Laboratory and its ongoing projects, see Cyberjustice Laboratory, Software, available at h p://www.cyberjustice.com/en/software-presentation/ Transitional justice is used after situations of armed conflict or generalized violations of human rights in order to bridge the gap between peace and justice “Transitional justice is a leading rite of modern political passage and draws upon both legal innovations and ritual acts that enable the passage between two orders—the predecessor and successor regimes.” See Lisa J Laplante & Kimberly Theidon, Transitional Justice in Times of Conflicts: Colombia’s Ley de Justicia y Paz, 28 Mich J Intl L 49, 50 (2006–2007) ICT-Driven Strategies for Reforming Access to Justice 327 Using a Modular and Collaborative Methodology, the Model Chosen by the Cyberjustice Laboratory Many of those involved in judicial processes and proceedings express deep dissatisfaction regarding costs and delays, which put the protection of the court system beyond the reach of many of who need access to it These obstacles contribute to a lack of trust on the part of litigants in the judiciary as a whole.7 This dissatisfaction provokes people to avoid formal justice and turn to alternative dispute resolution mechanisms A recent survey, for example, asked people in France to identify cases in which they would prefer finding a negotiated solution or compromise rather than going to court The results speak for themselves: 97 percent responded affirmatively in the case of troubles with their neighbors, 92 percent in the case of commercial disagreements, and 87 percent in the case of purchases made over the Internet;8 a similar preference for negotiation and compromise over litigation was observed in Quebec.9 The computerization of judicial processes and the networking of stakeholders in the legal world, which constitute a vital part of the transition to cyberjustice and a more-integrated justice system, contribute to reducing the costs and delays of the judiciary process and hence improve access to justice as a whole Activities such as using paper to present procedures, making multiple copies of documents to be sent to all parties, and requesting parties to be physically present in the courtroom all have a definite impact on the costs and delays of the judiciary process Allowing for official documents to be sent to parties via e-mail, eliminating the need for parties to be physically present in the courtroom, and allowing testimony to be presented via videoconference, among other cyberjustice solutions, significantly contributes to improving access to justice by reducing delays and costs However, successful cyberjustice initiatives remain the exception, and the a achment to paper and to parties’ presence at all stages of a procedure remains the rule In fact, some projects aim at developing technological solutions to make the judicial process more efficient and transparent, as was the case of “Courtroom 21,” a project developed at the Center for Legal and Court Technology in the United States.10 The aim of the project was to identify and evaluate technologies that would be useful to the judicial system The Cyberjustice Laboratory goes farther; it tries to understand why some jurisdictions have successfully implemented hightech case-management solutions,11 while in other jurisdictions millions of dol7 E Allan Lind & Tom R Tyler, The Social Psychology of Procedural Justice (Plenum, 1988) France, Ministère de la justice, Sous-direction de la statistique et des études—Secrétariat général, Enquête: Opinions des Français sur la justice—2013, (2013) The majority of average-income households in Québec (53 percent) said that they were in favor of finding alternative solutions to the courts See Observatoire des services professionnels, L’offre et la demande de services juridiques: Les besoins des ménages revenus moyens (2013) 10 For more information, see William & Mary Law School, Center for Legal and Court Technology, h p://law.wm.edu/academics/intellectuallife/researchcenters/clct/ 11 For example, British Columbia’s JUSTIN project In 2004, British Columbia adopted electronic filing software—the Justice Information System, or JUSTIN—to manage records in 328 The World Bank Legal Review lars were invested without ge ing satisfactory results.12 The failure of some ICT initiatives shows that implementing technological solutions for some of the judiciary’s problems (such as costs and delays) is pointless if the parties refuse to use the technology The premise underlying the Cyberjustice Laboratory’s research projects is that ICT solutions that respect and understand the human and sociolegal reasons for being apprehensive about using technologies will be implemented successfully, resulting in a reduction of costs and delays associated with the judiciary process Accordingly, the Cyberjustice Laboratory is studying the legal parameters and sociocultural barriers to the adoption of technological solutions in the field of justice In other words, it is important to understand that there are legal, cultural, psychological, and social reasons that can block the implementation of ICT solutions for reducing costs and delays This chapter explains how using a modular and collaborative methodology can help surmount these obstacles This part of the chapter shows that ICT initiatives using a modular and collaborative methodology can contribute to the reduction of costs and delays in the judicial process, providing more effective access to justice13 and a bona fide delivery of justice in emerging countries through the science of delivery The World Bank’s conception of the science of delivery is composed of four basic features: First, delivery is about problem-solving with emphasis on contextspecific solutions Second, delivery is concerned with addressing social goals in complex and interpenetrating systems in a way that identifies capacity gaps as well as intervention points Third, delivery is collaborative and interactive Lastly, a future delivery science will necessarily be multidisciplinary and thus, will require expertise from various disciplines to measure results and triangulate data that will help discover what is driving success or failure.14 The modular and collaborative methodology advocated by the Cyberjustice Laboratory encompasses these four basic features of delivery described in the above quotation Since 2011, the Cyberjustice Laboratory, with its team of 36 researchers and its international and multidisciplinary background, has been working on the identification of sociolegal barriers to the adoption of technological solutions in the justice system The team has conducted many socio-legal observations, such as testing ICT tools and holding mock hearings, to evaluate new technologies that may be useful in modernizing the judicial criminal ma ers JUSTIN was later adapted to civil proceedings See British Columbia Ministry of Justice, Integrated Corrections Operations Network (ICON) II Project, h p://www pssg.gov.bc.ca/corrections/about-us/technology.htm 12 The Integrated Justice Project is discussed in the next section 13 Nicolas Vermeys, La cyberjustice et l’espace OHADA: Des outils virtuels pour une avancée réelle, Journal Africain du droit des affaires, Numéro spécial 102, 104 (2013) 14 World Bank, supra note ICT-Driven Strategies for Reforming Access to Justice 329 process and rethinking the justice system to meet the needs of individuals The project’s innovativeness lies in its capacity to make concrete socio-legal observations thanks to the development, in cooperation with the primary stakeholders in the justice community, of a new generation of open-code, interoperable software modules designed to facilitate dispute processing and resolution in ways that are adapted to the needs of users and legal actors One of the main goals of the Cyberjustice Laboratory is to take advantage of technological advances to make the justice system more accessible and efficient.15 To achieve this goal, the Cyberjustice Laboratory has chosen to use a modular and collaborative methodology This methodology comprises many different elements, which are explained in the following sections after a brief clarification of why some past ICT initiatives have failed This chapter thus sheds light on why this methodology, which is in the continuum of the science of delivery, would be effective for implementing ICT initiatives in developing countries Failure of Past Cyberjustice Initiatives Before considering the development and implementation of new ICT initiatives in emerging countries, it is important to analyze and understand the reasons why some of the initiatives launched in North America have not been effective Understanding the reasons behind these failures helps to ensure that the same mistakes will not be made again and that different methods will be used when implementing cyberjustice initiatives in developing countries With the growth of computer technology, many ICT initiatives have been launched to help courts ease the backlog of cases and improve access to justice for ordinary people Unfortunately, many of these initiatives have failed, due mainly to high expectations, improper implementation of new technologies by the courts, and misidentification of the needs of stakeholders Prior ICT initiatives that were ineffective often used a technology-driven or top-down approach In the context of cyberjustice, this approach refers to a complete overhaul of the system using new technologies The approach requires a high initial investment and subsequent gap-filling measures As many authors have stated, in a complete overhaul, there can be resistance from the main stakeholders because of a lack of willingness to learn a new system in a timely fashion.16 This is exactly what happened with the Integrated Justice Project17 in Ontario, where stakeholders and litigants were reluctant 15 Cyberjustice Laboratory, The Project, available at h p://www.cyberjustice.ca/en/the-project 16 Karim Benyekhlef & Nicolas Vermeys, Buenas practicas en Applicaciones de Ciberjusticia, in Buenas practicas para la implementacion de soluciones tecnologicas en la administracion de justicia, 29–49 (Antonio Caballero, Carlos Gregorio de Gracia, & Line Hammergren eds., IIJusticia 2011) 17 The Ontario project was launched in 1996 by the Ministry of the A orney General and the Ministry of Public Safety and Security “The objective of the Project was to improve the information flow in the justice system by streamlining existing processes and replacing older computer systems and paper-based information exchanges with new, compatible systems and technologies.” See Office of the Provincial Auditor of Ontario, Integrated Justice Project, 330 The World Bank Legal Review to use the interesting technological solutions offered.18 The reluctance of the main stakeholders was not due to an inability to develop appropriate technological solutions for the judicial process, but to psychological, social, political, and cultural barriers19 that inhibited research, implementation, and the use of advanced ICT solutions Thus, to get all parties on board, it is necessary to understand the barriers to the use of new technologies and find a way to circumvent them Properly identifying the needs of the stakeholders to ensure the successful implementation of ICT initiatives is also essential The failure of some past ICT initiatives was also due in part to poor assessment of costs This was especially true in cases involving complete system overhauls because, as with any project of significant size, the possibility of hidden costs always exists When identifying costs, it is important to take into account not only the initial acquisition costs but also the potential costs in relation to expansion and upgrades As new technology becomes available, it is crucial to take into account the hidden costs related to hardware and software upgrades.20 Therefore, at the onset of a project, a significant cost-benefit analysis is helpful in avoiding any surprises, and contingency plans should be in place when finalizing a budget in order to alleviate any fears of future costs Achieving a proper budget analysis is easier on smaller-scale projects or on pilot projects as advocated by the modular methodology In sum, the failure of cyberjustice initiatives implementing a technologydriven approach or undergoing a complete overhaul of the justice system occurred mainly because the stakeholders were not prepared for such huge changes and stakeholder needs were not properly identified Furthermore, given the complexity of the justice system, finding an answer to the problems in a homogenous, simple manner is implausible One of the answers to the complexity of the justice system can be found in modularity Modularity: A Definition As previously discussed, past ICT initiatives failed because they tried to solve a complex situation using a single software solution in a technologydriven approach For this reason, the Cyberjustice Laboratory advocates using an “incremental or modular approach where compatible and interconnecting technological solutions are found in order to address precise problems rather than to construct complex networks.”21 Another important aspect of the Cyberjustice Laboratory’s work is that all the modules are developed in open-source code to facilitate the sharing and adaptability of those modules 283 (Annual Rpt., 2003) 18 For more details, see Carl Baar, Integrated Justice: Privatizing the Fundamentals, 42(1) Can Pub Administration 42 (1999) 19 These aspects will be detailed later in this section 20 Benyekhlef & Vermeys, supra note 16, at 12 21 Id., at ICT-Driven Strategies for Reforming Access to Justice 331 The open-source code allows stakeholders to make the changes they consider necessary given their specific situations.22 The goal is to develop justice system–friendly software modules that will contribute to delivering be er access to justice.23 Therefore, it is important when developing those modules to make sure that they are compatible and complementary, ensuring a smooth transition to cyberjustice and avoiding overlapping issues.24 To deliver be er access to justice in developing countries, it would be useful to develop or use existing ICT solutions to create different modules or platforms that would allow, for example, the use of mobile phones for intake, referral, and case management.25 Small-scale changes, made one at a time, enable ICT initiatives to be implemented effectively Again, the purpose of this chapter is not to provide a precise ICT initiative for developing countries; rather, it suggests that the methodology used by the Cyberjustice Laboratory in the development of ICT initiatives in Canada could be used, where the context is found to be appropriate, in implementing and developing cyberjustice initiatives in these countries Nor is the purpose of this chapter to argue that the modular and collaborative methodology is a miracle solution to the problem of access to justice The point is to take advantage of ICT innovations to improve access to justice everywhere, including in developing countries—and having a modular and collaborative tactic optimizes the implementation of those innovations As Nicolas Vermeys argues in his article on cyberjustice and the Organization for the Harmonization in Africa of Business Law (OHADA), even in developed countries, few substantial investments have been made in the field of cyberjustice, which means that currently the gap between the North and the South is not significant.26 It should be kept in mind that when implementing ICT initiatives in developing countries, a ention must be focused on the specific context in which the initiatives are to be implemented, and that they must be adapted accordingly27 Identification of the Judiciary’s Factual Needs When developing a cyberjustice system or proposing an ICT initiative, it is essential to properly identify the needs of the stakeholders Judiciary stakeholders have often been resistant to change; therefore, “the successful implementing of said change will necessarily require stakeholder approval This approval 22 Cyberjustice Laboratory, supra note 15 23 Id 24 Benyekhlef & Vermeys, supra note 16, at 25 Sean Martin McDonald, Law in the Last Mile: The Potential of Mobile Integration into Legal Services (blog entry, Leg Info Inst., Corn U L Sch., Dec 22, 2011), h p://blog.law.cornell edu/voxpop/2011/12/22/law-in-the-last-mile-the-potential-of-mobile-integration-into-legal -services/ 26 Vermeys, supra note 13, at 103 27 Further explanations on the topic are found later in this section 332 The World Bank Legal Review obviously hinges on whether or not the provided cyberjustice solution corresponds to the needs of each stakeholder.”28 From the Cyberjustice Laboratory’s point of view, implementation of a new technology should be done in a modular way to ensure that stakeholders are comfortable with the tool created for them In this manner, wasteful technology and redundancy can be averted, and funds spent optimally.29 Generally speaking, ICT initiatives could help to meet some of the basic needs of the judicial system in Latin America and Africa The Study Center for Justice in the Americas (Centro de Estudios de Justicia de las Américas; CEJA) has highlighted some of those general needs in developing countries in regard to ICT and how ICT initiatives could help improve the delivery of justice: ICT would bring a positive impact on improving levels of transparency in the operation of the institutions of the justice system, improving access to the justice system by the citizenry, improving efficiency and efficacy in the performance of multiple tasks, enabling and enhancing innovation processes in the delivery of justice and in judicial management, enabling citizenry scrutiny over the justice system, facilitating accountability of the judicial authorities by the citizenry, among others.30 When assessing the actual needs of the judiciary in developing countries, it is also important to determine the “ICT readiness” of the countries31 for the implementation of technological innovations in the judicial or extrajudicial system In recent years, developing countries have improved and increased their ICT capacities, but not all countries are at the same level In order to evaluate the ICT capacity of a country, three sets of indicators must be considered First, infrastructure indicators compute the number of personal computers, mainline and mobile subscribers, Internet users, and 3G subscribers in a country This group of indicators also analyzes the broadband usage, the number of Internet hosts, and the security of the Internet servers available in the country Second, capacity indicators focus on the education level in a country 28 Benyekhlef & Vermeys, supra note 16, at 10 29 Cyberjustice Laboratory, supra note 15 30 C Hernández & R Adelardi, Perspectivas de uso e impacto de las TIC en la Administración de Justicia en América Latina (working paper, CEJA & Microsoft n.d.) Original text in Spanish: “Las TIC podrían tener un alto impacto en mejorar los niveles de transparencia en la operación de las instituciones del sistema de justicia, en mejorar el acceso de la ciudadanía al sistema de justicia, en aumentar los grados de eficiencia y eficacia en el desempeño de múltiples labores, en posibilitar y potenciar los procesos de innovación en la impartición de justicia y en la gestión judicial, en posibilitar la auditoria ciudadana sobre el sistema de justicia, en facilitar la rendición de cuentas de las autoridades judiciales a la ciudadanía, entre otros ámbitos.” Cited in Gabriela R Szlak, Online Dispute Resolution in Latin America, in Online Dispute Resolution: Theory and Practice, A Treatise on Technology and Dispute Resolution, 534 (Mohamed S Abdel Wahab, Ethan Katsh, & Daniel Rainey eds., Eleven Intl 2012) 31 Mohamed S Abdel Wahab, Online Dispute Resolution for Africa, in Online Dispute Resolution: Theory and Practice, A Treatise on Technology and Dispute Resolution, 562 (Mohamed S Abdel Wahab, Ethan Katsh, & Daniel Rainey, eds., Eleven Intl 2012) ICT-Driven Strategies for Reforming Access to Justice 333 and analyze the illiteracy rate, public expenditure on education, and international Internet bandwidth Third, financial indicators study the economy of the country (e.g., gross domestic product (GDP), foreign direct investment (FDI), and public and private investments in telecommunications).32 Mohamed S Abdel Wahab, who has elaborated on the topic of ICT readiness, explains that according to these indicators, African states’ readiness to implement ICT initiatives can be described as falling into three different groups: (1) ICT ready States such as South Africa, Egypt, Morocco and Tunisia; (2) ICT progressing States such as Nigeria, Cameroon, Tanzania, Algeria, Seychelles, and Ghana and (3) ICT potentially progressing States such as Botswana, Malawi, Zambia, Central Africa, Chad, Niger, Guinea, Somalia, Ethiopia, Burkina Faso, Sierra Leone, Ivory Coast, Burundi, and Rwanda.33 ICT-ready states are states where all three groups of indicators are at high levels For instance, most people in the country have access to a computer or have a mobile subscription; the illiteracy rate is very low, the education system good, and the financial situation satisfactory Implementing an ICT pilot project in such a country should not be very difficult because everything is in place to facilitate implementation, given that the needs of the stakeholders are fully understood and the solution offered is tailored to the realities of the country ICT–potentially progressing states are states that have the willingness to implement ICT initiatives but that are not yet ready in terms of all three sets of indicators A good example would be Somalia, a country that experiences internal political conflict.34 It would be very difficult to successfully implement an ICT initiative in such a context because the realities and conditions on the ground not allow for it to happen The country first needs to improve crucial areas such as peace, stability, health, and food security before beginning to consider implementing cyberjustice initiatives As for ICT-progressing states, these lie somewhere in between the ICT-ready states and ICT–potentially progressing states This means that in ICT-progressing states, the three groups of indicators are somewhat present, but further adjustments have to be made before implementing cyberjustice initiatives, and these initiatives might have to be more basic in design and implementation than in an ICT-ready state 32 Id., at 563 33 Id., at 567 34 The country has been without a strong central government for many years and is facing regular a acks from an extremist group, Al Shabab The World Bank classified the country as “low income” and indicates that only 29 percent of children are enrolled in primary school The population is estimated at about 10 million people, of whom only 0.045 percent are connected to the Internet and 0.11 percent have a subscription to a mobile phone See World Bank, Data by Country, “Somalia,” available at h p://data.worldbank.org/country /somalia; UN Somalia, Fact Sheets, available at h p://www.unsomalia.net/infocenter/fact sheets.htm; BBC News, Who Are Somalia’s al-Shabab? (May, 16, 2014), available at h p://www bbc.com/news/world-africa-15336689 334 The World Bank Legal Review Whether a developing country belongs in the first, second, or third group will have a definite impact on the needs and realistic goals of that country when it comes to improving access to justice through ICT initiatives Thus it is important to be able to effectively identify the needs of the judiciary and to distinguish needs from wants Involving the stakeholders in the development phase of a cyberjustice initiative is another aspect to consider when identifying the factual needs of the judiciary Collaboration: Involving Stakeholders For ICT initiatives to reflect the reality and needs of the legal field, judiciary stakeholders must be involved in the projects from the beginning The legal field includes many different actors, and to be faithful to their needs, they all have to be involved, not just lawyers Judges, law clerks, Department of Justice professionals, lawyers, and court administrators, as well as civil society, all have different needs Computer programmers, software and application developers, and other IT professionals must be able to establish the needs of the judiciary when developing cyberjustice solutions.35 Being involved from the beginning in cyberjustice projects minimizes stakeholders’ resistance to technological changes and promotes their understanding and ownership of the project Another way to limit resistance is to develop ICT initiatives that use tools people are familiar with It follows that, given the huge number of cell phone subscribers worldwide, using mobile cellular technology-driven initiatives would help ensure that stakeholders in developing countries are on board and willing to collaborate.36 The online dispute resolution platform known as PARLe (Plateforme d’Aide au Règlement des Litiges en ligne; Online Dispute Resolution Platform) serves as a good example.37 For this project, the Cyberjustice Laboratory team conducted consultations with mediators, representatives of Quebec’s Consumer Protection Office, the Ministry of Justice, and Educaloi, a local nonprofit organization that aims to improve access to justice in Quebec These consultations allowed the Cyberjustice Laboratory team to gather valuable information on what the actual needs of the stakeholders and actors were PARLe uses ICT tools to improve the resolution of low-intensity disputes by reducing costs and delays This web-based dispute resolution platform adapted to consumer disputes involves a three-step process The first step is the negotiation stage, where the litigants try to solve the issue on their own The second step is the mediation stage, which becomes available to the parties only if the first step is unsuccessful The last step is employed if the litigants 35 Benyekhlef, & Vermeys, supra note 16, at 11 36 McDonald, supra note 25 37 It is interesting to note that this application was developed by the Cyberjustice Laboratory in consultation with stakeholders in order to get their opinions on what services the future platform should offer Implicating the stakeholders from the beginning contributed to getting them on board with the project See Cyberjustice Laboratory, ODR: PARLe, available at h p://www.cyberjustice.ca/en/odr-parle ICT-Driven Strategies for Reforming Access to Justice 335 cannot agree; it involves electronically transferring the case to a competent tribunal A great advantage of PARLe is that “due to its numerous features, the platform can easily be adapted to the specific needs of administrative tribunals and mediation and arbitration bodies.”38 This means that this project could easily be adapted and implemented in other parts of the world, such as Latin America, as a way to improve the resolution of consumer disputes and other low-intensity disputes PARLe has been successful in part because the stakeholders were involved from the beginning of the project’s development, ensuring that the actual needs of the actors were clearly understood and that the stakeholders were on board with the project once it was implemented Understanding the Socioeconomic Context in which ICT Initiatives Are to Be Implemented The effectiveness of the use of a technology depends on the technological resources available and the sociocultural context in which the technology is implemented It is not sufficient to merely import existing technology that has been successful in other contexts; doing so could be described as digital colonialism To use ICT initiatives effectively in the improvement of access to justice in developing countries, digital colonization must be avoided To avoid this phenomenon, ICT initiatives have to reflect the socioeconomic situation of the country in which they are implemented For an ICT initiative to be implemented effectively and contribute to improving access to justice, “the technology [used] has to be accessible from a physical, a philosophical as well as an economic stand point.”39 In other words, developing ICT solutions that use the most widely available technologies throughout the country and that people are willing to use is vital For developing countries, this might mean focusing on ICT initiatives that involve using a mobile device as opposed to a computer, because many people may not have access to the la er ICT initiatives are more likely to improve access to justice in developing countries if they use technological resources that are readily available on the ground and that take into consideration the socioeconomic context in which they are implemented.40 Implementing technologies that improve the justice system and society at large demands an understanding of the likely cultural, psychological, and social impact of a given technology, inasmuch as technologies can have a positive or a negative effect on human behavior.41 For example, an ICT initia38 Id 39 Vermeys, supra note 13, at 118 (translated by author) Original: “La technologie se doit d’être accessible tant du point de vue physique, que philosophique, qu’économique.” 40 Karim Benyekhlef, The Rise of Mobile Justice in Developing Regions (address presented at the Law, Justice and Development Week 2013: “Towards a Science of Delivery in Development: How Can Law and Justice Help Translate Voice, Social Contract and Accountability into Development Impact?” [hereinafter Law, Justice and Development Week 2013], World Bank, Washington D.C., Nov 18–22, 2013) 41 Benyekhlef & Vermeys, supra note 16, at 336 The World Bank Legal Review tive that makes submi ing certain documents to the court in electronic format mandatory would put those who did not have access to a computer at a disadvantage and contribute to reinforcing the pre-existing socioeconomic divide between the rich and the poor This is why “we must carefully study how a given cyberjustice solution will cause our habits to change and if those changes are beneficial to the process and its stakeholders.”42 To be effective, a cyberjustice initiative also needs to take into consideration the specific components of the target country’s legal process “As long as we have not clearly established why such and such a component of [a given] legal process works in a certain way, why people have accepted a certain method of doing things or rather why they are a ached to it, we cannot hope to succeed in implementing technological solutions in order to make that component more efficient.”43 Therefore, to be widely accepted and used in the judicial process, ICT initiatives have to respect and adapt to the judicial rituals of the country.44 Implementing Pilot Projects As previously explained, cyberjustice initiatives involving a technologydriven approach or complete overhauls of the justice system failed mainly because the stakeholders were unable to adapt to huge changes, and the initiatives offered a simple solution to a complex situation To ensure that cyberjustice initiatives see the light of day and are sustainable, this chapter advocates a modular and collaborative methodology in line with the science of delivery approach Part of this methodology involves the use of pilot projects and/or small-scale initiatives as a way that the actual needs of the stakeholders are met and that the ICT tools used are effective Using pilot projects allows for the review of “the policies and practices relating to technology with respect to policies designed to foster the development of access to justice.”45 Pilot projects allow for the study of the impact of ICT initiatives on the justice system and of user satisfaction with the changes made “This preliminary work will make it possible to adopt best practices and to share the findings with the stakeholders, as well as to conduct an analysis of future prospects so that new projects can be suggested.”46 One concrete example illustrates the point about pilot projects The Management and Follow-Up of Cases System (Sistema de Gestión y Seguimiento de Casos; SIGESSCA) pilot project aims to improve access to justice through an online platform offering be er access to legal services provided by university legal clinics in El Salvador, Guatemala, and Uruguay.47 The online 42 Id., at 43 Id., at 44 Vermeys, supra note 13, at 131 45 Benyekhlef, supra note 40 46 Id 47 Id ICT-Driven Strategies for Reforming Access to Justice 337 platform makes it possible to manage, monitor, and share administrative and court files Because the platform is decentralized, it provides be er support for members of vulnerable groups The platform also provides automatic tracking of regulatory legal deadlines and can send notifications to users through e-mails or text messages (SMS, or short message service) The SIGESSCA project has inspired legal clinics throughout Latin America to provide free legal aid to underprivileged groups “From this point of view, this project clearly illustrates the important role that technology, especially mobile technology, can be called upon to play in delivering legal services to members of underprivileged groups and thereby increasing their access to justice.”48 The first part of this chapter has made the case that the modular methodology advocated by the Cyberjustice Laboratory, which uses open-source code to develop pilot projects such as PARLe, allows for wide dissemination of good practices that will be helpful in the development and implementation of ICT initiatives in developing countries These good practices in the field of cyberjustice can then be used in emerging countries to develop ICT initiatives that provide be er access to justice The second part of the chapter advocates utilizing the infrastructure (the knowledge, partners, and multidisciplinary approach) of the Global Forum on Law, Justice and Development and the Community of Practice on Alternative Dispute Resolution as a starting point for developing effective ICT initiatives aimed at improving justice delivery in developing countries The Global Forum on Law, Justice and Development: A Project Incubator Access to justice remains difficult in a number of developing countries for various reasons, but mainly because of fear of tribunals and state institutions, and technical and procedural difficulties ICT initiatives can contribute to alleviating some of these difficulties, particularly in the reduction of costs and delays Using electronic communications in the judicial system would allow litigants to save money, thus improving access to justice for many who cannot normally afford it.49 Cyberjustice also encompasses developing solutions that reduce travel expenses, by developing online dispute resolution platforms and by allowing for witness testimony via videoconferencing.50 Regarding reduction of delays, part of the solution lies in finding ways for litigants to get access to justice without needing the intervention of a judge.51 Thus, “the remedies may involve computerizing and providing online access to ADR (alternative dispute resolution) mechanisms as well as to traditional justice 48 Id 49 Vermeys, supra note 13, at 105 50 Id., at 106 51 Id., at 107 338 The World Bank Legal Review systems”52 that have ancestral roots to decrease the number of cases for the formal justice system This section explains how the Global Forum on Law, Justice and Development (GFLJD) and its partners, including the Community of Practice on Alternative Dispute Resolution, using the modular and collaborative method in the science of delivery, can be an effective platform for developing ICTdriven strategies that modernize and reform mechanisms for be er access to justice in developing countries The multidisciplinary approach of the GFLJD, which brings together an impressive list of partners from all over the world, makes the forum a perfect project incubator Developing pilot projects to bring together the methodology of the Cyberjustice Laboratory and GFLJD partners such as the World Bank is a good starting point for implementing new ICT initiatives and studying the impact of existing initiatives that offer be er access to justice in developing countries Using GFLJD Partners to Modernize and Reform Access to Justice in Developing Countries The GFLJD consists of a permanent forum and an ICT web-based platform that seeks to promote “a be er understanding of the role of law and justice and strengthen and be er integrate legal and judicial institutions in the development process, through selected capacity building initiatives and an open repository of knowledge.”53 The GFLJD offers a platform that allows its 148 partners54 to join in improving justice delivery in developing countries The forum consists of “a structured partnership, built on a broad network of development partners such as other International Financial Institutions, International Organizations, Central Banks, government agencies, judiciaries, universities, think tanks and civil society organizations.”55 Also, the fact that the partners are from both the North and the South, helps bridge the gap between the two and allow them to share one another’s experiences and knowledge when developing ICT-driven access to justice initiatives All this knowledge provides “practical legal contributions to development challenges and will improve the legal and judiciary systems which form the intangible infrastructure for sustainable development.”56 52 Benyekhlef, supra note 40 53 Global Forum on Law, Justice and Development, 10 Things about the Global Forum on Law, Justice and Development (2011), available at h p://globalforumljd.org/about/10_things.htm 54 These partners include but are not limited to the African Development Bank (AfDB), Center for Research on Collaboratories and Technology Enhanced Learning Communities (COTELCO), Centre de recherche en droit public (CRDP), Centre for Mediation and Law, Instituto de Investigacion para la Justicia (Research Institute for Justice), and World Bank See Global Forum on Law, Justice and Development, Partners (2014), h p://globalforumljd org/partners/index.htm 55 Global Forum on Law, Justice and Development, Generating Innovative Legal Solutions to Development Challenges—Overview, 12 (Jan 2012), h p://globalforumljd.org/docs/about /gfld_ppt_light.pdf 56 Id ICT-Driven Strategies for Reforming Access to Justice 339 The work of the GFLJD can definitely contribute to providing more effective access to justice in emerging countries through the science of delivery Indeed, the GFLJD approach is in line with the four basic features of delivery57 as defined by the World Bank Thus, the exchange and knowledge transfer of the web-based platform that connects all GFLJD partners to relevant research and practices will improve development outcomes,58 which is in line with the third feature of delivery: collaboration and interaction Furthermore, the GFLJD “provides targeted audiences a coherent, sustained program of collaborative research and technical assistance to accelerate knowledge translation and use,”59 allowing for the development of solutions for poor access to justice that are context-specific, as the first feature of delivery prescribes Last, the GFLJD has a multidisciplinary approach because it brings together experts from the economic, legal, and technical fields.60 According to the World Bank, this multidisciplinary expertise will contribute to “measure results and triangulate data that will help discover what is driving success or failure” of ICT initiatives.61 The GFLJD, through thematic working groups of partners, will produce sample agreements, operational manuals, guidance notes, as well as legal and policy analysis The forum and its partners will also collect data, such as laws, commentaries, and jurisprudence.62 All this information will be invaluable when developing ICT initiatives for emerging countries Another important actor providing effective access to justice is the Community of Practice on Alternative Dispute Resolution, which operates under the auspices of the GFLJD but is not part of a particular thematic working group, allowing it to have a cross-cu ing approach The Work of the Community of Practice on Alternative Dispute Resolution The Community of Practice (CoP) on ADR is a group that brings together institutions devoted to the improvement of alternative dispute resolution processes The CoP on ADR is co-led by the Cyberjustice Laboratory and the Ministerio de Reforma Judiciario, Ministério da Justiça of Brazil and operates under the auspices of the World Bank’s Global Forum on Law, Justice and Development.63 The group’s research focuses partly on how ADR mechanisms, such as negotiation, mediation, and arbitration, can be used to support 57 For a definition of the four basic features of delivery, see note 14 58 Global Forum on Law, Justice and Development, Information Note (2011), h p://globalforum ljd.org/about/index.htm 59 Id 60 Id 61 World Bank, supra note 62 Global Forum on Law, Justice and Development, supra note 55 63 Karim Benyekhlef & Valentin Callipel, CoP on ADR (address presented during the Law, Justice and Development Week 2013) 340 The World Bank Legal Review development policies related to access to justice The CoP on ADR is interested in ADR initiatives operating within the margins of the courts and in extra-judicial processes.64 The work of the CoP on ADR is divided into three distinct research dimensions: (a) development of ADR and justice, (b) online dispute resolution contributions to development policies, and (c) ADR contributions to transitional justice policies.65 The CoP on ADR, with its highly qualified, diverse partners, is a good starting point for developing new ICT initiatives as well as for studying the impact of existing access to justice initiatives in developing countries Using a modular and collaborative methodology, the group is able to give “special a ention to the role played by information technology in support of ADR practice.”66 ADR processes definitely are an important part of improving access to justice and delivery of justice in developing countries Using a multidisciplinary approach, the CoP on ADR focuses its expertise on studying social changes taking place in conflict resolution using ICT tools It can closely monitor the impact social change may have on policies of regional development Also, the CoP on ADR is a very useful tool for promoting awareness of the development, local implementation, and improvement of ICT initiatives in emerging countries.67 Furthermore, the CoP on ADR will study the impact of those ICT initiatives on access to the justice system and justice delivery, as well as on implemented development strategies and policies in developing countries.68 The CoP on ADR believes that as mobile technologies continue to spread in developing countries, access to the traditional justice system will improve, but use of those technologies will also lead to extrajudicial procedural innovations that provide new options and make up for the inadequacies of the traditional justice system The use of these new technologies is transforming models of justice and the way justice is administered,69 and developing countries need to take advantage of this fact In regard to ADR, the CoP on ADR believes that “the remedies may involve computerizing and providing online access to ADR mechanisms as well as traditional justice systems that have most often taken root in the shade of courts that, for example, in the case of Africa, date back to colonial times.”70 For this reason, mobile technology can be used as a tool that will improve the classical justice system but that can also be used as a procedural innovation for alternative justice.71 64 Benyekhlef, supra note 40 65 Benyekhlef & Callipel, supra note 63 66 Benyekhlef, supra note 40 67 Cyberjustice Laboratory, Forum on Law, Justice and Development Proposition for a Community of Practice Regarding Alternative Dispute Resolution: Concept Note (unpublished, Feb 21, 2013) 68 Id 69 Id 70 Id 71 Id ICT-Driven Strategies for Reforming Access to Justice 341 Moreover, cyberjustice initiatives have the potential of bringing formal and informal justice closer together In other words, incorporating ADR processes into a state’s justice system through ICT tools can help improve access to justice.72 If, for example, the legislator of a given country were to decide to incorporate a web-based mediation platform for solving commercial litigation problems into the judicial system by making it obligatory for litigants to go through it before going to court, the delays, costs, and difficulties of accessing the justice system would effectively be reduced Pierre Meyer explains in an article on arbitration that this reasoning is particularly true for African countries: In African societies, the law has been essential to the search for an acceptable solution which does not break with the social balance The practice of law aims at obtaining conciliation and reconciliation—rather than the rigid application of a predetermined standard that could disrupt the social equilibrium, increasing tensions within society.73 The next section discusses the CoP on ADR’s argument that mobile technologies can have a particularly important impact in the context of transitional justice, which often takes a hybrid form, bringing formal and informal justice together The Use of ICT in the Context of Transitional Justice One important topic to be examined by the CoP on ADR is how ADR processes contribute to transitional justice ICT initiatives can help improve delivery of justice in the context of transitional justice just as they in general access to justice But what is transitional justice, exactly? According to a 2004 report by the UN secretary-general, the notion of transitional justice comprises the full range of processes and mechanisms associated with a society’s a empts to come to terms with a legacy of largescale past abuses, in order to ensure accountability, serve justice and achieve reconciliation These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, ve ing and dismissals, or a combination thereof.74 Transitional justice mechanisms are usually employed in the aftermath of armed conflicts or in the context of periods of transition from totalitarian or authoritarian regimes to more democratic regimes.75 There are many benefits 72 Vermeys, supra note 13, at 111 73 Pierre Meyer, OHADA—Droit de l’arbitrage (Bruylante 2002) (translation by the author) 74 United Nations, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General, U.N Doc S/2004/616 (23 Aug 2004), at para 75 Philipp Kastner, Cyberjustice in the Context of Transitional Justice, (Working Paper No 9, Cyberjustice Laboratory, Nov 2013), h p://www.cyberjustice.ca/en/documents-en/ 342 The World Bank Legal Review to using ICT in a context of transitional justice, such as information sharing, cost efficiency, access to the court system, participation, and outreach.76 This chapter focuses on the la er The criticism has often been made that when it comes to transitional justice, some institutions, particularly international criminal tribunals, have neglected to take into consideration the needs and concerns of local populations Furthermore, people living in remote areas have often not been able to take part in proceedings that usually take place far away from where the abuses or crimes being tried were commi ed Local populations also lack a clear understanding of the mandate and work of these institutions.77 ICT initiatives could help improve this type of situation “New technologies may play an important role in increasing access to transitional justice institutions and in facilitating communication between the institutions and their constituencies Especially communities with low literacy rates may benefit from visual—ideally live—representation of proceedings held in other areas.”78 Given that a large part of the population in developing countries lives in rural areas, courtrooms are often located miles away and traveling conditions are often far from ideal.79 Therefore, physically accessing the justice system and transitional justice institutions remains one of the biggest challenges for people living in developing countries In this context, using ICT tools can help alleviate the difficulties of reaching places that are far away in unsafe areas after a conflict for such purposes as participating in inquiries or witness interviews Also, increasing communication with local communities enhances ownership over transitional justice mechanisms Using ICT tools can also lead to exchanges of information or dialogue between the different communities affected by the situation in the country, thus promoting social cohesion and national unity.80 “It would, therefore, be useful to encourage decentralized, bo om-up approaches that give a greater voice to grassroots organizations, even in the planning phase of a particular mechanism The result may be a more collective, and collectively-owned, perhaps even continuously evolving process, exactly what may be needed to deal with situations of massive trauma.”81 Conclusion The recent spread of mobile technologies worldwide has allowed people in developing countries to bypass the landline infrastructure phase and gain almost complete mobile access to networks from their phones Nowadays, one 76 Id., at 7–8 77 Id., at 78 Id 79 McDonald, supra note 25 80 Kastner, supra note 75, at 81 Id ICT-Driven Strategies for Reforming Access to Justice 343 can easily access the Internet from a basic cellular phone, rendering obsolete the need to buy or get access to an expensive computer.82 This chapter has thus argued that governments and other institutions in developing countries must take advantage of this spread of technologies to improve access to justice with ICT-driven strategies that will modernize and reform judicial and extrajudicial mechanisms This chapter has discussed the issues and challenges in relation to ICTdriven strategies and cyberjustice initiatives It has been shown that by using a modular and collaborative methodology when implementing ICT initiatives, these initiatives can improve access to justice in developing countries Adapting pilot projects such as PARLe and SIGESSCA to developing countries could be the beginning of a transition to an integrated justice system The Cyberjustice Laboratory advocates unleashing the potential of mobile technologies, through a modular and collaborative methodology, to improve access to justice in both the judicial and the extrajudicial processes This chapter has proposed that combining the experience of the Cyberjustice Laboratory with the GFLJD’s approach, which is in line with the four basic features of the science of delivery, would allow for the development of ICT initiatives that would effectively improve access to justice in emerging countries Furthermore, the CoP on ADR is a good starting point for developing new ICT initiatives as well as for studying the impact of existing initiatives for be er access to justice in developing countries Using ICT tools to bring formal and informal justice closer together is yet another way to improve access to justice The object of this chapter has been less to provide specific solutions to specific problems in highly specialized contexts than to offer some broad and useful guidelines that may serve as the basis for further reflection on possible solutions to improving access to justice in developing countries, and to stimulating those countries to so In particular, this chapter has highlighted the use of a modular and collaborative methodology that is in line with the basic features of the science of delivery, so as to harness the potential of mobile technologies and ICT initiatives In so doing, the goal is to improve access to justice in developing countries through mobile technologies and ICT initiatives, and by extension, to deliver more justice generally in those countries 82 Benyekhlef, supra note 40 [...]... ADR is a good starting point for developing new ICT initiatives as well as for studying the impact of existing initiatives for be er access to justice in developing countries Using ICT tools to bring formal and informal justice closer together is yet another way to improve access to justice The object of this chapter has been less to provide specific solutions to specific problems in highly specialized... the forum a perfect project incubator Developing pilot projects to bring together the methodology of the Cyberjustice Laboratory and GFLJD partners such as the World Bank is a good starting point for implementing new ICT initiatives and studying the impact of existing initiatives that offer be er access to justice in developing countries Using GFLJD Partners to Modernize and Reform Access to Justice in. .. processes into a state’s justice system through ICT tools can help improve access to justice. 72 If, for example, the legislator of a given country were to decide to incorporate a web-based mediation platform for solving commercial litigation problems into the judicial system by making it obligatory for litigants to go through it before going to court, the delays, costs, and difficulties of accessing the justice. .. cyberjustice initiatives It has been shown that by using a modular and collaborative methodology when implementing ICT initiatives, these initiatives can improve access to justice in developing countries Adapting pilot projects such as PARLe and SIGESSCA to developing countries could be the beginning of a transition to an integrated justice system The Cyberjustice Laboratory advocates unleashing the... Cyberjustice Laboratory, Forum on Law, Justice and Development Proposition for a Community of Practice Regarding Alternative Dispute Resolution: Concept Note (unpublished, Feb 21, 2013) 68 Id 69 Id 70 Id 71 Id ICT-Driven Strategies for Reforming Access to Justice 341 Moreover, cyberjustice initiatives have the potential of bringing formal and informal justice closer together In other words, incorporating ADR... improving access to justice for many who cannot normally afford it.49 Cyberjustice also encompasses developing solutions that reduce travel expenses, by developing online dispute resolution platforms and by allowing for witness testimony via videoconferencing.50 Regarding reduction of delays, part of the solution lies in finding ways for litigants to get access to justice without needing the intervention... utilizing the infrastructure (the knowledge, partners, and multidisciplinary approach) of the Global Forum on Law, Justice and Development and the Community of Practice on Alternative Dispute Resolution as a starting point for developing effective ICT initiatives aimed at improving justice delivery in developing countries The Global Forum on Law, Justice and Development: A Project Incubator Access to justice. .. proceedings held in other areas.”78 Given that a large part of the population in developing countries lives in rural areas, courtrooms are often located miles away and traveling conditions are often far from ideal.79 Therefore, physically accessing the justice system and transitional justice institutions remains one of the biggest challenges for people living in developing countries In this context, using... (GFLJD) and its partners, including the Community of Practice on Alternative Dispute Resolution, using the modular and collaborative method in the science of delivery, can be an effective platform for developing ICTdriven strategies that modernize and reform mechanisms for be er access to justice in developing countries The multidisciplinary approach of the GFLJD, which brings together an impressive list... initiatives in developing countries Using a modular and collaborative methodology, the group is able to give “special a ention to the role played by information technology in support of ADR practice.”66 ADR processes definitely are an important part of improving access to justice and delivery of justice in developing countries Using a multidisciplinary approach, the CoP on ADR focuses its expertise on studying