sou · GQB3112 · 2003-01-01 00:00:00 — It must also be asked how the IT support may affect the external organisation or the countrys division into court districts. The place where a case is to be dealt with is determined in accordance with the regulations in the Swedish Code of Judicial Procedure and other legislation. These regulations date from a time when todays opportunities for in- formation management were not available. For the client, the jurisdictional regulations are less impor- tant than other factors, for example the time it takes to bring a case to trial. The physical distance to the court does not have any significance in many cases. The majority of cases in the general administrative courts can be determined by written proceedings; the same applies to many cases in the appellate courts. I believe that the work of a certain court in the future will not be decided by where the disputes arise, but according to the capacity the court has to decide the case. I can imagine that a developed IT support system will enable more flexible jurisdiction regulations which will give the parties a greater say in respect to where the case shall be dealt with. Such a development will also be facili- tated by new video technology which will enable witnesses and others to be in a physical location other than the premises in which the proceedings are being held. The opposite situation may also be possible in which the courts officials are located in an- other place to that of the court room where the parties are lo- cated. If, in this way, the clients obtain greater influence over where the case shall be dealt with, the work can be directed to where there is the production capacity. Elements of this can al- ready be seen today when parties to agreements agree the legal venue where any future disputes shall be resolved. This could also be done in order to obtain rapid processing of a case or proc- essing by a court where specialist knowledge is available. The opportunities of directing the work to where there is production capacity are being opened up with the aid of the IT support system which will be implemented over the next few years. It will be possible, as I mentioned earlier, to allow the par- ties an increased say, but it will also be possible to manage the work in order to achieve the greatest possible client value other- wise. One example of such management may be that courts are given different profiles and will specialise in different areas of the law. The demarcations of the courts actual work content can thus be determined by other factors than the jurisdiction regula- tions. If work is determined according to production capacity, this will affect the way in which resources are allocated to courts. The current method of resource allocation is based on measuring the workload in different ways and allocating resources accord- ing to how much the courts have to do. The purpose of such an allocation model is not primarily to create client value but rather to create a more equitable allocation between independent authorities, in much the same way as efforts are made within a court to create an equitable distribution of cases among judges. The allocation of resources can instead be based on the client value that a certain court creates. This is close to a form of com- petitive situation between courts, and in other areas of society competition is said to create increased client value. This could be the case for courts and their clients too. There are even external competitors to the courts; legitimate in the form of arbitration tri- bunals, and illegitimate in the form of enforcer gangs and such- like. Encouraging increased competition, both internal and exter- nal, with the aim of increasing client value could perhaps be tried and in that case with a new IT support system as a tool. Natu- rally, in such cases there are also other aspects to consider, such as the preservation of independence in the judicial process etc. In the future, the demarcation between courts may become less rigid and the situation may approach that of a virtual court organisation where the work is not so rigidly linked to the physi- cal unit which currently constitutes a court. From the clients per- spective it could for example be possible to have a court of ap- peal for the whole country where the work is directed to various local organisations according to where production capacity is available. 4.3 Access to information about the courts activities Traditionally all information relating to a certain case has been managed in a physical file which is kept in the court. The parties have had access to certain parts of this information in the form of various documents. When the MÅHS system was introduced, this meant that certain information in respect of the case became available via the system internally within the court. The next stage is to open up the system and thereby to make the informa- tion concerning the case accessible outside the court as well. This also touches upon issues regarding the way in which the court meets the client. I would like to indicate some possibilities in this respect. 4.3.1 The parties access to relevant information The parties in a case should have direct access to such informa- tion concerning the case as is to be found in the operational sup- port system. This could be compared with the access a bank cus- tomer can gain via an Internet bank. It is thus a question of being able to obtain information in real time about what is happening and about being able to provide information to the court. The parties should thus be able to go directly into their case and see the relevant information via an Internet service or other method. It may be difficult to give a party access to all information that the court has about a case. An example of such a situation could be direct access to documents which have been submitted to the courts. These documents may contain information which is con- fidential, and it is not reasonable that all such confidentiality is- sues shall be solved in advance and that all documents be checked by the court before they are made available to the par- ties. It is probable that the party can be given the information that the document exists, when it was received and who submitted it, and thereafter have the chance to order the document. Only at that stage will the court make an assessment of the confidential- ity issue, and normally it should be possible for a document to be distributed, for example via e-mail, relatively promptly (provided that the court is organised to meet these client demands). The parties should also be able to provide information to the court di- rectly via an Internet service or suchlike, and thereby to co- defendants or opposing parties. There may also be opportunities to allow the parties to submit a large part of the information which is required in order to register the case, for example the prosecution in a criminal case can submit practically everything that is required in order to initiate case proceedings in the court. The parties submit and access information Figure 1: The information flow in a case 4.3.2 The information flow between courts – cases on appeal When a case is appealed, the physical file is sent to the higher court. At present the file is the completely dominating informa- tion for the higher court. With a new IT support system the information flow can be integrated between the courts so that one can look up and down in the court chain in order to find out what is happening to the case on appeal. This provides opportuni- ties to recycle information about basic case details. Highest court of appeal Figure 2: The information flow between courts If the information is integrated in this way between the courts, completely new opportunities of making court rulings public will It is easiest to see this in respect to criminal cases. In order find out what the result has been of a criminal case in the appellate court, at present a party may need to obtain the follow- ing elements of the court of appeals ruling: NThe prosecutions statement of the crime as an appendix to the judgement of the court of first instance. NThe judgement of the court of first instance. NThe findings of the court of first instance. NThe appeal as it has been noted in the appellate court. NThe judgement of the appellate court. NThe findings of the appellate court . Except for the findings of the court, this is a question of struc- tured information which can be handled together with the aid of a developed IT support system. The result of the verdict of the ap- pellate court could be a summary of the structured information where it is stated how this has been altered from the prosecu- tions statement of the crime right up to the appellate courts judgement. I believe there are major opportunities here to create greater client value with the aid of the IT support system without actually affecting the content of the courts work: it is just a bet- ter presentation of the result compared with the present set-up. 4.3.3 Other flows of information between courts There is a need for direct access to information about other courts cases even in other circumstances than when a case is be- ing appealed. The administrative courts of appeal and the Su- preme Administrative Court have had a well-developed system of this kind for a long time now. It is used above all by the judges in order to search for similar decisions, a situation which must be deemed of benefit in attaining a uniform judicial application. There are also elements of this in the general courts but there the methods are not so developed as in the administrative courts of appeal and the Supreme Administrative Court. For example there is a certain exchange of this type in that certain reports of pro- ceedings with reviews of decisions are sent to other courts. There are good opportunities in this respect to allow courts to have ac- cess in real time to at least meta data concerning the decisions of other courts. It is possible to solve this from a technical perspec- tive, what it is important to focus on is obtaining good quality levels in respect to the information that is to be made available to others. 4.3.4 Division of work between the court and the parties When the court and the parties have access to common informa- tion in respect to the case in real time, opportunities are created to work in other ways than the traditional ones. The boundaries of the responsibility of the court and the parties respectively can be called into question and new solutions sought. It is difficult to see the direction in which this development can go, but with shared information and transparent systems it should be possible to find more expedient solutions that the ones in use at present and which are largely based on paper-bound information or on attending court in person. I can imagine that development may go in the direction of the parties assuming a greater responsibility for progressing the case, for example through greater involve- ment in the planning. This could take the form for example of the prosecution, which provides the court system with the greater part of the information required for the management of the case, also planning and summoning the defendant to plead- ings/proceedings in the court. In such a situation the court should provide the resources to adjudicate upon the case – premises, equipment etc. – and the prosecution will have the responsibility of booking these resources within given limits. Another possibility could be to use the courts system and the common information in the system as a platform in order to try to resolve disputes prior to initiating proceedings. The parties should be able to use the courts system for example for concilia- tion discussions, with or without the participation of the court. Now that a modern and transparent information management sys- tem is being introduced in the courts over the next few years, we will have opportunities to change and improve operations for the benefit of the courts clients. The new IT support system, how- ever, will not automatically lead to anything other than marginal effects. We are now facing a greater task than just the develop- ment of IT support. It is a question of utilising the opportunities which are created. In this respect the courts need to be prepared to analyse and re-evaluate their working methods and also to im- plement major changes. Only then will we really benefit from the investments which are now being made in an opera- tional support system. If the present court organisation and work- ing methods are retained, the benefits will be marginal. has chaired the IT since its creation in 1996. He has also been a member of the Swedish ICT Commission since 1994 and its vice chairman since 1998. He obtained his doctors degree in 1977 at the , . His thesis, Computing . Perspectives on a New Legal Discipline, argued for the advantages of a broad, system- atic, and interdisciplinary study of the interaction of law and information technology. In 1982 he was invited to a chair in legal informatics at the law faculty with national responsibility for the development of study and research programmes in the field. He has been engaged as an ex- pert by both government and industry. Among other things, he has served on various study groups and committees of the , ment, , and Union. His published works include EDP and . An Inventory of Issues (in Swedish, 1975), Protection to Knowledge (1990, editor) and and IT (in Swedish, 7th edition, 2001). has worked as Manager with the Swedish ICT Commission since 1995. His main responsibility has been the IT . He obtained his law degree at the , in 1981. He has served as secretary with several Swedish Governmental Committees, among them . He is also a judge at the Administrative County Court of . Director of Regulatory Affairs at Plus, has been a member of the IT since 1996. He has been working with ICT-related legal issues since the end of the 1980s and functioned as Principal Secretary to (1997-1999). He is the au- thor of Consumer Purchases through Telecommunications in Europe - Ap- plication of to Cross-Border Contractual Dis- putes, CompLex 4/93 (: , 1993), Ytringsfrihet - en konstitus- jonell utfordring? (Fredrikstad: Institutt for Journalistikk, 1994) and the IT report 6/98, The "anonymisation" of the transaction and its impact on legal problems - A theory as to why the use of ICT engenders legal problems. Areas of interest: Convergence, E-commerce, freedom of expression and information, , media etc. has been a member of the IT since 1996. She has recently been appointed General and Corporate Secretary at the , and has previously served as General at and as Corporate Legal Counsel at . graduated from the , , in 1986 and also holds a of Science from , where she graduated the same year. She is a frequent lecturer in the area of IT- law and international business, and co-authored the book Outsourcing of IT-services in 1999 (with ). Her next work will be published in 2003, under the title Business Negotiations and she will also be a contributor to a book tentatively titled International Agreements, also to be published in 2003. obtained his law degree from the , university. His continued academic legal work includes studies at the Collège dEurope in and at , , where he obtained a LL.M degree. In 1981 he became a member of the . 1988- 1993 he was associated with the law firm . Since 1993 he is a partner with the law firm. Much of his work has involved media-related issues, in particular copyright and pri- vacy protection. He has also been in contract formation regarding structural matters in the media sector. In addition to numerous articles, his published works include books on, among other things, rights in pictures and a commentary to Swedish intellectual property rights legislation. joined the Observatory in 1996. joined the Observatory in 1998. She has worked as a legal expert for the , a project aimed at establishing an Internet por- tal for Swedish cultural endeavours. Later she has been employed by the law firm where she has specialised in legal issues related to Internet publication, a subject on which she has also written a book, Inter- netpublicering. En juridisk vägledning (Internet Publication. A Legal Guide, 3rd ed. Having worked within different Governmental committees from 1988 to 1997 with the task to consider IT-related legal issues in different areas, e.g., civil law, procedural law, criminal law, and administrative law, Per was appointed District Court Judge in in . To- day, he works at the law firm Setterwalls with IT related issues. Per has been a member of various international working groups. e.g., the on Guidelines for the Security of , on Problems of Criminal Proce- dural with , and on Crime in Cyberspace. He has further been Consulting Expert regarding IT related issues in various projects sponsored by Commission. Per joined the Observatory in 1996. is President of (of Appeal), , . He has earlier worked in the Office of the Parliamentary Ombudsman and in the Cabinet Office and served as Chancellor of . He is a member of the IT since 1999. His main interest in the work of the Observatory has been IT and its impact on judicial procedure, on the ad- ministration of , and on court administration. has been a member of the IT since 1996. He is educated both as a lawyer and a social scientist. He obtained his doctor´s degree in 1978 in Sociology of at the sciences, Univer- sity. His thesis, The Societal Functions of , entailed a comprehensive overview of the legal system. He has worked as a senior lecturer in Business law at where in 1984 he became docent (reader) in civil law at the . Later on, in 1988, he returned to , now as appointed professor (chair). has served as an expert in several public committees and has undertaken many missions especially in the field of human rights and development of the legal system. He is a member of several editorial committees, among them the , Retfaerd, and the in Sociology of . During the first half of the 1990s he was a member of (the ). has written numerous articles and books on different subjects, such as environmental law and human rights. During the last ten years he has been interested in future studies, for instance in relation to self-regulation, information technology, and biotechnology. argues for Sociology of as a science about norms, for instance in his book, Norm science (first published in 2002). works as Regional Counsel for in the Nordic region. She obtained her law degree from the , in 1980 and an LLM degree from in 1982. Among other things, she is the chairperson of the legal council of the IT-företagen, a business organisa- tion for the Swedish IT industry. She joined the Observatory in 1996. is a partner with the law firm, where he heads the firms IT and Intellectual property group. His practice includes E-commerce, digital copyright, IT contracting and data protection issues. He is a member of the since 1992. has been involved in Swedish and international organisations. One of the engagements was serv- ing as a co-chair of the sub-committee on international transactions in the , whose main work resulted in a report on juris- dictional issues on Internet transactions. His experience also covers serving as a national expert in UN/ECE working group on E-commerce and . In , he has been a member of the IT since its crea- tion in 1996. He has also been a member of the legal council of the Swedish IT Trade organization. His published works include Electronic Documents and Electronic Signatures (1987), (in Swedish, 1991, , the law and the accountant (in Swedish, 1992) and Practical IT (in Swedish, 3rd edition, 2001). (formerly Hultmark) is professor of Commercial at Univer- sity and holder of the Wiarda-professorship at the . has been a member of the IT since 1999. She is chairman of the drafting group in the on a European Civil Code, Expert to the International Chamber of Commerce on e-commerce and to the EU Commission on B2B Internet platforms. She was head of the Swedish dele- gation in the on Electronic Commerce during 1996-2001 and has been engaged as an expert on e-commerce to govern- ments. She has written extensively within the fields of contract law and electronic commerce. Her latest book is Internet Marketplaces – The of Auctions and Exchanges Online (2002). joined the Observatory in 2002. He works for the of with matters of IT law, company law, and environmental law. He has earlier professional experience from the publishing sector and the bank- ing sector. is Chief Legal Adviser of the for since 1989. After obtaining his law degree at in 1983, he worked as a Legal Adviser at DAFA, the Swedish data-processing centre during 1984-1989. In 1991 he served as Legal Adviser to the . He is often engaged as an expert in the field of IT law in general, as well as in the area of administrative law, in- cluding e.g. legal automation. At present (2002) he is engaged by the Minis- try of as Secretary in the for removing legal obsta- cles to electronic communication and electronic processing. Previous com- missions concern various working groups and projects, such as being Secre- tary in the Open Campaign (2000-2002). The campaign was run by the in order to improve knowledge of the to Ac- cess to Official Documents among civil servants and the public. Another task implied being Project Secretary of LEXIT in 1995; a Pre-Study on legal amendments necessary to accomplish an effective use of IT in public ad- ministration. joined the Observatory in 1996. joined the Observatory in 1996. She is a business lawyer specialising in matters of IT and media law. Among other things, she is a member of the board of BitoS, a Swedish business organisation for players such as portals, on-line newspapers, service providers and other new media enterprises. She is a partner with the law firm. joined the Observatory in 1997. He is a journalist and writer with a long ex- perience in legal and economic matters of the IT society. joined the Observatory in 2002. She works as legal advisor for the private law section of the Authorities. She specialises in, among other things, electronic commerce, IT contracts, and intellectual property law. References to documentary materials of the IT Reports (in Swedish unless otherwise indicated): 1/97 Transaktionens anonymisering och dess påverkan på rättsliga problemställningar. (also in English, see below 6/98.) 2/97 Konsumentskyddet i informationssamhället. (Consumer protection in the information society. Documentation from a hearing.) 3/98 Cyberrymdens juridik – Lagstiftning och självreglering. (Cyberspace law – legal regulation and self regulation. Documentation of a seminar.) 4/98 Mobila agenter. (Mobile agents. A discussion of legal aspects of agent technol- ogy.) 5/98 SPAM! (SPAM!? Documenation of two seminars on a new phenomenon and its legal consequences.) 6/98 The anonymisation of the transaction and its impact on legal problems. A theory as to why the use of ICT engenders legal problems. 7/98 Fri aktör, egenanställd, ny daglönare!? (Free agent, self employed, new day-labourers!? Documentation from a seminar.) 8/98 En missbruksmodell. (An abuse model. A discussion of new strategies for personal data protection.) 9/98 Rättspolitik på IT-området – ett diskussionsunderlag (Politics of law in the IT area. A report.) 10/99 Teknikoberoende yttrandefrihetsreglering? (Technology independent regulation of freedom of speech. An analysis of recent developments in Swedish law.) 11/99 Fri aktör, egenanställd, ny daglönare!? (Free agent, self employed, new day-labourers II. The present situation and needs for action.) 12/2000 Ledningsrätten i IT-tider (The law of conduits in the IT era. An inventory of issues.) 14/2000 Elektronisk handel och indirekt skatt.