sou · GQB3112 · 2003-01-01 00:00:00 — Examples of such factors are descriptions of sub- ject-matter relevance, formal and hierarchical relevance, obsoles- cence, and so forth. What this all adds up to is that the doctrine of legal sources will in most cases provide the necessary starting point for an analysis of the relevant legal material in a given area of law. Likewise, there is doubt that the doctrine of legal sources constitutes the most reliable framework for legal information management. (b)The investigation of the organisational level makes it ap- parent, in turn, that in all realistic enterprises involving IT in the legal sector organisational requirements must influence the ways in which the legal material is selected. It is also obvious that or- ganisational requirements may be of relevance for the ways in which the more subtle aspects of the material can be handled, re- lating, for example, to continuity, authenticity, and completeness. The analysis further shows that requirements at the organ- isational level should determine the ways in which legal materi- als of various kinds ought to be combined and amended. It is likewise clear that the organisational framework will provide in- dications concerning the type of meta-information that must be included in a feasible legal information system. In this context it is also important to notice that different organisations within the same domain may exhibit quite different requirements, due to their having different objectives. Also worth mentioning is that various users within the same organisation may have different opinions about the ways in which the material ought to be best managed, and about prioritisation. (c) The fact that users opinions vary is even more apparent when the requirements of individual lawyers are studied. At this level it may be even correct to say that at some point all lawyers will have their own opinion concerning the ways in which the le- gal material ought to be managed. This is not only a reflection of the fact that all individuals working with legal material will have different needs, owing to differences in the tasks they have to face, but also a consequence of different lawyers having different background knowledge and different opinions on law. Another conclusion from the analysis of individual lawyers requirements is that law should be perceived as a network of component structures appearing at different levels of abstraction. This is a consequence of the fact that users will require various legal components in different situations. For instance, in the ini- tial phase of the analysis of a legal problem a lawyer will seek for a legal concept describing the problem at a general level. The ob- jective will then be to be able to delimit the issue from the legal point of view. In order to obtain a more distinct picture of the situation, in the following phase attention may have to be shifted towards legal rules and definitions of interrelated concepts (pre- requisites). Thereafter, some methodological rule may have to be investigated, e.g. a rule concerning evidential value that may be ascribed to a certain fact which has been established. In the final stages of legal reasoning, search activities may aim at explicit references (documents) of a formal nature, etc. In this perspective, documents and text units, concepts, legal rules, and rule systems are only a few examples of the compo- nents of the complex network that constitute legal knowledge. Some levels of the network (e.g. document structures with ex- plicit references between associated documents) are clearly visi- ble, while others (e.g. rule-structures) can only be perceived after a thorough investigation of legal texts. It may be also noticed that some of the relevant component structures necessarily generate secondary structures. Document categorisation, for instance, im- plies supplementary structures, specifying authors, publication series, and so forth. The general conclusion drawn from the study of require- ments of legal information was therefore not only that these re- quirements are domain dependent, but also that situations in which law is to be used, together with the identity of the users, must be accepted as the point of departure in the design of legal IT-systems. The exploration of technical aspects revealed, in turn, that de- mands concerning legal information systems vary to a consider- able extent, depending on the user situation and the working tasks to be performed. Another important observation was that differences in expectations can be related to all aspects of tech- nology, e.g. computers, communication facilities, software per- formance, etc. The analysis furthermore indicates that the IT ma- turity of the users (or the potential users) is an important aspect that must be included in any evaluation of system performance in this area. Rapid development is a factor which complicates proper evaluation of technical methods. It is evident that, apart from more or less obvious conclusions concerning such things as ac- cess to high-speed communication facilities, graphical interfaces, cut and paste standards, hypertext and clickable buttons, etc., it is useless to be more specific about technical standards. In this re- spect the pace of change is simply too fast and unpredictable. In an investigation of methods one must also take into con- sideration the fact that at present several different technical stan- dards may provide satisfactory solutions. It is, for instance, obvi- ous that products and on-line databases can both pro- vide feasible storing and retrieval tools for professional lawyers, which is even more apparent when different software products are investigated. In the process of evaluation, however, it is not possible to foresee which standards will survive, and which will be replaced by new techniques and new technical solutions. When technical aspects are scrutinised, it is nevertheless no- ticeable that a number of jurisprudential and practical presuppo- sitions must be taken into consideration besides pure technical components. The complexity of legal information, for instance, may make it necessary to prioritise functions that may facilitate overviews. For similar reasons simplicity and focus on introduc- tion facilities will always be crucial when a certain system is be- ing evaluated. Likewise, for on-line applications 24-hour access, continuous assistance, e.g. in the form of a help desk, frequent updating of the content, print-out facilities and similar aspects are likely to be requested by a large majority of professional users in this area. These details suggest in turn that it is realistic to predict further development of computer-based legal networks, and that communication facilities and interoperability of systems are im- portant components of investigation when various legal informa- tion systems are compared. In a survey of technical aspects it is also relevant to remem- ber that the analysis of legal requirements indicates that advanced legal information systems should be able to handle not only legal documents and legal texts, but also smaller components, such as legal rules, rule systems, and legal concepts of various kinds. This also makes it obvious that legal information applications will develop from pure IR-systems and simple administrative systems towards applications with much more integrated func- tions. An additional factor to be considered is the fact that all law- yers will differ to some extent in their opinions about the law. This in turn makes it possible to predict that most users will be likely to appreciate customised systems rather than general- purpose systems, which is why in an evaluation of various sug- gested solutions priority should be given to applications that are open to such solutions. The third aspect of legal information systems included in the model of evaluation – the organisational component – focuses at- tention on several fundamental, but perhaps less frequently ob- served, aspects that may be relevant to look into when a legal in- formation system is to be investigated. The factors that can be related to organisational components are numerous, but in the completed analysis two aspects ap- peared to be more important than others, viz. stability and compe- tence. Stability is necessary, since all professional use of a legal information system is likely to presuppose investments in terms of time, money, and education. From this it obviously also fol- lows that it is desirable for the service to be of a permanent char- acter. The stability of a certain organisation, e.g. a publisher or a database provider, is, nevertheless, difficult to measure and pre- dict, especially in a long-term perspective, but it can be estimated to some extent by means of studying components such as the fu- ture plans, the size, and the economy of the organisation. Competence, in turn, is a generic concept covering a number of aspects ranging from legal proficiency, technical competence, and combined skills concerning all aspects of legal information systems. Competence thus perceived is not only of the utmost importance when legal information systems are to be designed, but is also a crucial element when a legal information system is to be integrated into the work process and, of course, when a sys- tem is to be managed over a longer period of time. Competence being such a broad concept, its evaluation may sometimes be quite difficult and time-consuming. Then again, various aspects are of such a kind that their evaluation is only possible over a certain period of time. When this aspect is inves- tigated, it may, nevertheless, be relevant to try to investigate components such as flexibility, service, etc. Finally, the analysis of factors relevant to legal information systems shows that the investigation combining information con- tent, technical aspects and organisational issues illustrates how a feasible model for the evaluation of legal information systems, IT products and services can be developed. It should also be noticed that the model of evaluation outlined in this study can be used not only when various legal information services are to be scruti- nised and compared from the users point of view, but that it can also be used by the legal information system designer, as well as the legal information manager. 3 Conclusions and future work In this study some approaches have been described that may be utilised in order to evaluate legal IT-systems. The focus of atten- tion has been on system components (content, technical aspects, organisation), user requirements and various external factors. The objective has been to provide the means for the critical and con- sistent scrutiny of the products and services that are being devel- oped. In this respect the model of evaluation based on information content, technical aspects and organisational aspects can be char- acterised as exhibiting an overall structure facilitating more sys- tematic investigations. It is also noticeable that the model is gen- eral in the sense that it can be used for evaluation of legal infor- mation systems of various kinds, and that it reflects components that can be accepted by scholars of different traditions. In addition, it may be suggested that the model is transpar- ent in the sense that the components can be described in a non- technical way, and that all legal and technical terms can be ex- plained as they appear. It may furthermore be claimed that the model is explicit and particular by means of providing a basis for the elaboration of more or less stepwise specifications. It is also apparent that the model is flexible since it can be modularised in such a way that one or more components can be changed, elabo- rated upon, omitted, etc. without disturbing the overall structure of the model. For the future, however, it is important to take into consid- eration the fact that the rapid development of IT and telecommu- nications, as well as the increasing internationalisation of law, necessitate revision and adjustment of many of the more detailed aspects of the employed method. Likewise, it may be concluded that this must be done more or less continuously. Additional fac- tors to be considered in this context are the growing competitive- ness and increased commercialisation of the legal information market. Another, obvious, conclusion from the above is that en- hanced and up-to-date knowledge of IT-components and various types of user requirements will continue to be important when various products and services are to be evaluated . In the long-term perspective, however, it may be argued that one should be even more ambitious, trying to utilise the results of the analyses and evaluations in a broader sense. Most important in this respect appears to be that it is desirable that the analyses include development methods for legal IT-systems, as well as long term effects. The need to include development methods in the discussion is motivated by the obvious fact that there exists a close relation- ship between the characteristics of legal IT-systems and the vari- ous strategies and methods that are employed in order to design and develop them. This is just another way of saying that it should be important to scrutinise, among other things, the ways in which preliminary studies are completed, organisational analy- ses carried out, and legal sources selected, adjusted and trans- formed. Likewise implementation strategies and educational ac- tivities are relevant to scrutinise in order to minimise problems with user acceptance. Figure 2: An evaluation of legal IT systems with any practical ambitions should include not only system components of a tangible nature but also system development methods and effects. Similarly, the necessity of aggregating and systematising knowl- edge about the effects of legal information systems follows from the fact that it is important to understand the ways in which vari- ous legal IT-systems affect the legal community. In many situa- tions it is quite clear that legal IT-systems are likely to have a considerable impact on the way legal work is carried out. Like- wise, the ways in which the systems are designed and utilised may affect the substantial aspects of law, and for obvious reasons it is also interesting to understand and try to manage these conse- quences. In this wider perspective, the nature of investigations that have to be completed differs depending on the situation. When a legal IT-system is implemented in a teaching organisa- tion, for instance, it is natural to investigate whether the system has had a positive effect on the actual learning, how the course administration and the teachers resources have been affected, and so forth. Likewise, it is relevant to scrutinise the economic consequences, the emerging legal problems, the effect of IT in- vestments on the future plans and flexibility of the organisations. Another reason why the study of effects appears to be a cru- cial issue is the obvious fact that in many situations it may be necessary to regulate the consequences of legal IT-systems in or- der to vindicate various kinds of legal quality aspects. A final insight from this study is that legal sources via IT constitute very complex phenomena with far reaching conse- quences. It is thus obvious that IT is having, and will continue to have a profound impact on the legal profession, revolutionising the quest for law. It should be underlined, however, that this de- velopment will not result automatically in enhanced quality and better efficiency in the legal sector. An increased complexity, which the subject matters addressed in this study doubtlessly rep- resent, is also something that is likely to be reflected in the num- ber of things that may create problems. From this in turn follows that all lawyers must be prepared to elaborate their critical atti- tude, and be able to actively evaluate legal information in a very cautious way as the development continues Alternative Dispute Resolution – The Fea- tures and the Future During the past few years there has been a growing interest in different alternative dispute resolution models capable of work- ing through the Internet (for a definition of the term ADR-online, see section 2.1). The discussions are not confined to Internet en- thusiasts: interest is growing among decision-makers as well. One example of this is the Directive on electronic commerce, Ar- ticle 17 of which addresses alternative dispute resolution.1 An- other is the Swedish government, which in its plan of action for consumer policy between 2001 and 2005 highlighted alternative dispute resolution as a possible solution to upcoming problems on the consumer market due to new technology.2 Similar ques- tions are discussed by , which already has operational al- ternative dispute resolution services functional through the Inter- net. On example is the Internet Domain Name Processes. The question of alternative dispute resolution and its pre- requisite was furthermore discussed during WIPOs conference Forum on and Intellectual Property in , January 30th 2001. Among the reports from the con- , which can be found on-line at forum/en/, I would like to mention the one performed by H. H. Perritt, Electronic Commerce: Issues in and the Role of Alternative Dispute Resolution. In there is also an ongoing research project, the Ge- neva E-law project (), conducted by L.L.M., is a doctoral student at the , His research is focused on the interaction between intellec- tual property rights and private international law and will result in a dissertation regarding, in particular, issues arising from trademark in- fringements on the Internet. 1See Directive 2000/31/EC of Parliament and of 2000 on certain legal aspects of information society ser- vices, in particular electronic commerce, in the internal market, OJ L 178, 17/07/2000. 2See Government bill 2000/01:135, Handlingsplan för konsumentpoli- tiken 2001-2005. sity with the aim of evaluating existing ADR-online systems and formulating recommendations for the improvement of upcoming dispute settlement mechanisms using information technology. When glancing through the sources mentioned above, it is easy to conclude that the Internet society demands alternative dispute resolution. It is easy to promote the development of dif- ferent resolution services, but it is also quite easy to forget the question of whether or not an average Internet user really de- mands all these different alternatives. Is it conceivable that a pri- vate-based dispute resolution might prevent individuals from get- ting their rights judged before a competent court? Is it possible to think that the development of private-based dispute resolution might lead to a veritable jungle of different dispute resolution systems impossible for the average Internet user to comprehend? Just as I believe alternative dispute resolution in many cases to be necessary for the development of the Internet marketplace, so I believe it to be possible, not least because of the development of a wide range of different dispute resolution services reaching out to consumers. However, there are problems in the consumer sphere. They are highlighted by in a re- port about alternative dispute resolutions available online to con- sumers in cross-border disputes. In part this report supports the conclusion that consumers are not likely to be able to count on ADR-online systems offering adequate redress.3 As a consequence of the problems mentioned above I think that the development of new dispute resolution systems must be demand-based. The question whether or not there is a demand for an alternative (to traditional administrative and judicial proce- dures) is, in my opinion, sometimes forgotten or omitted in the on-going discussion about alternative dispute resolution. This short essay is an attempt to highlight this potential problem. I will not be particularly consumer-oriented in my presentation though. Instead Im going to use a present Swedish example, the suggested introduction of an ADR-online system for the Swedish top-level domain .se. My hopes are however that the findings will be applicable on a more general level, for instance to the problems on the consumer area mentioned above. The report can be found on-line at . 2 The features and the future 2.1 What is ADR-online? Before going into any further detail about my thoughts on this subject, it might be appropriate to mention something about what ADR-online is, or more correctly how I define the term for the purpose of this paper. I have no intention of presenting a new wall-to-wall definition, but still there has to be some kind of common starting point. To begin with, alternative dispute resolu- tion can be considered to be something other than traditional ad- ministrative and judicial procedures. Furthermore, resolution has to be based on electronic communication to be regarded as ADR- online. This adds up to the following definition: Alternative dispute resolution online is a procedure differ- ent from traditional administrative and judicial procedure, in which disputes can be solved through the Internet or any other similar network. This definition embraces numerous variations of proceedings. For instance, systems related to arbitration, mediation and vari- ous forms of evaluations or negotiations with the intention of binding the disputing parties on a voluntary basis. I will neither have the time nor the space to evaluate the differences in this pa- per though. Instead I refer, for further reading, to the comprehen- sive report from the E-law project Online Dispute Resolution: The state of the Art and the Issues conducted by T. , G , D. and V. . 2.2 What is a successful ADR-online? Even though the proceedings differ, I think that they have certain points in common. The parties who are expected to use the ADR-online system must have confidence in the system. There are various ways of confidence into an ADR system. One can talk about due process and openness, one can talk about the competence and in- dependence of the mediators/arbitrators but nothing, in my opin- ion, is as crucial as the preceding discussion about demand. If there is no demand for a planned or newly launched ADR-online system, I can guarantee that success will fail to appear. Demand can be a lot of things, and therefore the way of ex- tracting it may differ. To simplify matters I have chosen to ex- tract the most impending demand to a discussion about sanctions. In line with that I think quite a good demand-estimate would be accomplished by answering the following questions: N Are the dispute resolution demands as regards sanctions ful- filled in the traditional judicial and administrative proceed- ings? N If not – what is missing – what are the sanctions demanded? N Is it possible for the ADR-online system to cure this unsatis- factory state of affairs; i.e. is it possible for the ADR-online system to decide upon those sanctions? 2.2.1 Are the dispute resolution demands as regards sanctions fulfilled in the traditional judicial and administrative proceedings? The starting point in a discussion about ADR-online must, as mentioned above, be what kind of demands this alternative is supposed to fulfil. This demand ought to be derived from a short- age in the existing systems of judicial and administrative pro- ceedings. In the area of domain name registration there has been a his- tory of name-napping and trademark infringement. This is an ac- tivity mainly concentrated to top-level domains with the charac- teristics of openness, that is top-level domains where domain names can be registered without any preceding control of intel- lectual property rights. In January 2000 a dispute resolution service aimed, among other things, to solve problems with name-napping was intro- duced.