sou · GQB3112 · 2003-01-01 00:00:00 — The procedure was named the Uniform Domain Name Dispute Resolution Policy (UDRP) and was meant to be used mainly for solving problems in the generic top level domains .com, .net and .org. By now the system has proven to be a great success. At the time of writing more than 4,000 cases have been decided, thanks to the UDRP. In there is an on-going discussion as to whether or not a system like the UDRP shall be adopted for the Swedish top- level domain .se. In line with my observations stated above, the first question must be whether there is a demand for that kind of system for the Swedish top-level domain and whether the de- mand can be met within the frames of the traditional judicial pro- ceedings. Ultimately the demands in a domain name dispute are the transfer of the domain name from the holder to the plaintiff. This kind of transfer is easily accomplished in a traditional judi- cial procedure and therefore one can argue that there is no de- mand of an ADR-online system. The truth might be more nu- anced, though. In the introduction to the report mentioned above, Perritt points out a variety of demands, i.e. arguments promoting ADR- online. For the purpose of this paper I have chosen the three de- mands I conclude to be most imminent: 1.The transaction cost of a traditional administrative judicial procedure is high. In a world where the value of the underly- ing transaction is low, victims tend to be less likely to seek vindication. ADR-online can be inexpensive, at least by com- parison with traditional judicial proceedings, and thereby sat- isfy the interests of the victims in getting a dispute resolved with transaction costs not outweighing the value of the under- lying transaction. 2.The Internet is by nature global and an Internet user can easily be anonymous in a world without borders. Traditional judicial proceedings often depend on localisation to determine juris- diction. This makes the questions of jurisdiction somewhat unpredictable. A more foreseeable situation might be created by the help of ADR-online. 3.Another problem with the traditional judicial proceedings is that the decisions are difficult to enforce outside the jurisdic- tion of the deciding court. Enforcement between nations re- quires some kind of agreement, agreements which are quite uncommon. If private parties mutually agree to abide by the decision of the ADR-online system there might definitely be a demand to satisfy. As regards the development of an UDRP for the Swedish top- level domain I am not certain whether or not such circumstances are at hand. If one suspects a lot of upcoming problems with name-napping in the .se domain it is likely that there will be dis- putes. In that sense there might be a demand for alternative dis- pute resolution services. Considering the low price of domain names and the following low cost of the transaction there might at least be arguments in favour of the first condition stated above. 2.2.2 What are the sanctions demanded? As mentioned above, the parties are likely to demand an enforce- able decision. The question of whether or not a decision is en- forceable is influenced by which sanction the parties are demand- The sanctions relevant here are of course private-law-based, but even when this is the case there are a variety of possibilities. The problems could be illustrated with a consumer buying an ob- ject that leads to product liability. If the essence of the dispute is whether or not the consumer should be given replacement goods, it might very well be solved by an ADR-online system, but the question of product liability lies, in my opinion, outside the pos- sible range of an ADR-online system. This last question must be solved in a traditional judicial procedure because of the far- reaching nature of the sanction and, consequently, an increased requirement of due process. When it comes to domain name disputes the plaintiffs are, as mentioned above, mainly interested in a transfer of the domain name. The sanction in this case would in other words be a do- main name transfer. 2.2.3 Is it possible for the ADR-online system to decide upon those sanctions? In general the main problem for ADR-online systems is that the sanctions demanded are not at the disposal of the dispute resolu- tion service. In such a situation you are dependent on the good intentions of the losing party. There are various ways to bind the losing party to the decision of an ADR-online system, but in a situation where you are dependent on the voluntary compliance of the parties you always risk defectors. Defectors tend for their part to undermine the confidence of the dispute resolution service and thereby threaten the future success of the ADR-online sys- tem. This is not the case, however, with the sanction demanded in our example. A transfer of a domain name is enforceable within the framework of the ADR-online system. It is easy to ac- complish as long as the actors in control of the domain name servers comply with the decisions. A transfer of a domain name means, putting it simply, that the stated domain name holder in the domain name server alters and you do not need the consent of the prior holder to do so. In other words it is perfectly possible to create an ADR-online system which really can satisfy the de- mand of an enforceable decision in this field. I think that the reason why the UDRP has proven to be so successful is the fact that it is possible to get what you want within the frames of the system even if the losing party does not respect the outcome of the dispute. Conversely, this is the biggest threat to the development of functional ADR-online – the diffi- culties of meeting the demand for enforceable decisions. As you have probably already concluded, this paper is not a comprehensive documentation over ADR online. is it a thor- ough investigation of the judicial risks at stake, but rather a few thoughts on the road to a more balanced discussion about ADR- online, which no doubt is a important part of the future dispute resolution regime. In general I agree with most of the findings in the reports from the conference in and the E-law pro- ject. We cannot only discuss details about how to build func- tional ADR-online systems though. In my opinion, which is in no way contrary to the reports, there must be a preceding discussion about whether or not the alternative dispute resolution is de- manded in the first place. Demand in this sense is a prerequisite for a functional ADR-online system. The demand ensures that the ADR-online system will be used and a frequent use builds confidence. When it comes to my example, the introduction of an ADR- online system for the Swedish top-level domain, I do not think that the demand is high enough to motivate a new dispute resolu- tion system. For the purpose of this paper that is of minor inter- est, however. The important thing is that the questions of demand should be raised and examined before an ADR-system is intro- duced. Courts of the Future In this presentation I will deal with various aspects of the use of IT in the courts. By way of introduction I will give a very brief description of the existing IT support system. Thereafter I will present some important premises for the work which is in pro- gress on the further development of IT support in the courts. In conclusion I will outline some opportunities for the development of working methods and forms of organisation in the courts with the support of an improved operational support system. 2 Current IT-support in Swedish courts of law Swedish law courts today present a great diversity of IT support. There are general systems which have been developed jointly for various types of court, and solutions which have been developed specifically for a certain type of court. The lower courts, rent and tenancy tribunals, district courts and county administrative courts have had the support of the MÅHS system since the beginning or middle of the 1990s. This is a case management system which primarily supports the more administrative elements of case management. It is logically and physically located at the individual court and there is no real in- tegration between the different courts systems. There is no pos- sibility of information pooling between different courts or lower courts. MÅHS was developed to support the working methods and forms of organisation that were normal at the time when the systems were developed. This, for example, has made it difficult to change operations that have used MÅHS as the tool. Thus, MÅHS provides good support to the courts in respect of case management but restricts the scope for adapting the system to new working methods and organisational forms. is an associate judge of appeal. Since 1999 he has been engaged by the to work on the development of IT-support in Swedish courts. He has also taken part in work by Govern- ment committees on organisational matters in the courts and in other state and municipality organs. Since the 1970s, the administrative courts of appeal and the Su- preme Administrative Court have had a uniform system which is completely different from MÅHS. The system, Imdoc/Find-IT, actually lacks any support for case management (MÅHSs strong point). The emphasis is instead on information-searching for the judges. The system is integrated between the courts and it is pos- sible to search for information not only in the individual court, but in the other courts too. and district courts can also access the information in the system. Information about cases is stored in a common database which is managed by an external company. The system is a great aid to the judges when they are searching for similar decisions in their own court and in other courts. Searching for similar cases is likely to benefit the uniform application of the law. Other courts of law, courts of appeal and the Supreme Court have different solutions with varying support systems for case management. In addition to the system described, the employees of the courts also have extensive personal IT support available. This consists of support for word processing, calculation, e-mail and information searching via the Internet and in own information da- tabases, for example the library system. 3 Some premises for the further development of IT support in the courts Work has been in progress since 1999 to develop a new operational support system for the courts of law. The new system () is being developed on three levels. The platform or bot- tom level of the system is a database from Oracle. The interme- diate level, business logic, is programmed in Java and the user in- terface is based on JavaScript and html format. Each court has its logically demarcated part of the database which is physically lo- cated in one place. The Swedish courts access the information via the judiciarys Intranet. I will not go into further detail with re- gard to the technology of the system design or the content of the operational support. I will just point out some significant aspects which are central for the development of the new operational support system. 3.1 When will things return to normal? Society, of which the courts are a part, is undergoing change and development. With society constantly changing, the courts of law must understand and adapt to this change in order to be able to fulfil their tasks in the judicial process. Changes in the surrounding world will lead to changes in the courts. What form these changes will take and what impact they will have on the work of the courts is almost impossible to predict. What is important is to be aware that changes will come and to be pre- pared to constantly re-evaluate how the work of the courts should be carried out. The answer to the question in the title of this sec- tion is therefore that Things will never return to normal. The normal is the state of change. This must be a corner- stone in the development work. The result should be flexible IT solutions which do not make the necessary operational develop- ment more difficult. 3.2 The goals of the court system The courts of law are independent authorities and the Swedish Government, the or others should not involve themselves in how courts rule in individual cases. Therefore, the IT support system must not be designed in such a way that the independence of the courts in their judicial process is affected. Each year, the Swedish Government sets targets for the ju- dicial sector in terms of throughput time (time taken to deal with a legal case). The courts operations are also analysed on an an- nual basis in order to provide input data for the allocation of fi- nancial resources between them. A well-developed IT support system can be used to help the courts to achieve the goals which have been formulated for their operations and can also be used in the analysis of the operations themselves. The overall goal of the judicial system can be described and measured in a variety of ways. In simple terms one can say that the goal of the judicial system is to determine cases quickly and with high quality. The goal of the system is thus concerned with the result as the parties, legal representatives, witnesses, ag- grieved parties, media, citizens etc. experience it. The work of developing the new operational support system is based on the task of the courts being to satisfy the demands of these external groups, demands which can be formulated on the basis of legisla- tion. For the sake of simplicity, I will hereafter refer to these ex- ternal interests as the courts clients. The word client can ap- pear somewhat misleading, but it works well when analysing the operations in order to develop an IT support system. The client concept also works well when using the IT support system as a tool for change. The word client does not fit so well in respect to managing individual cases and is inappropriate as a term in respect to judgements and court decisions. The external parties concerned are therefore not called clients in the operational support system. IT support shall be designed in such a way that it provides the greatest possible value to the courts clients. By focusing on developing an IT support system which creates the greatest pos- sible client value, the courts will at the same time obtain an effi- cient support system. Issues in respect to the courts internal or- ganisation and working methods can never be put first when de- signing IT support. Organisation and working methods are means to the ends which have been defined. Furthermore, they are al- ways changing. What is easy to quantify and describe is the part of the goal which consists of time, i.e. the time that it takes to arrive at the courts decision. Another aspect is the quality of the decisions. This is more difficult to quantify but some guidance can be ob- tained by looking at factors such as the frequency of appeals submitted and the frequency of successful appeals. 3.3 Business process re-engineering as a method In order to be able to meet the clients demands on the judicial system and provide the courts with opportunities to create as great a client value as possible, we use a process-orientated working method in order to further develop the courts IT sup- port system. The method has been originally taken from industry and has been adapted to public organisations. The operational method comprises identifying processes based on the type of cli- ents, analysing the processes and making conclusions. It is only thereafter that one can address the consequences. One of the con- sequences is developing the new IT support. Another conse- quence is adapting working methods and organisation so that the greatest possible client value can be created. This work, however, has to be done by the individual courts. A basic prerequisite for the work on the new IT support system is that it shall facilitate efforts to change working methods and organisation, but the sup- port cannot be designed in such a way that it forces a change in methods of operation. 3.4 Existing technology – Is it possible to create a judgment with the aid of a mobile phone? The rapid rate of IT development in recent years has given us good opportunities to utilise existing technology, and more or less developed solutions. Before starting to design a modern support system a number of questions must be asked about the operations. We have utilised the process-orientated work method to do this. The questions that should be asked are why a certain opera- tion is being carried out, what is being done and what should be done, and finally how it should be done. It is really only with the last question that the new technology and its possibilities come into the equation. Thus it is not possible to begin by looking at the opportunities offered by the technology, otherwise one could imagine that a judgement could be written with the aid of a mo- bile phone. This is actually possible, but the idea of designing an IT support system to act in this way will not arise if its has been asked why the operation is carried out and what should be done, at the same time as the value to the client has been kept in focus. (Mobile phones can be used, for example, to distribute court judgements in real time to parties if they so , but that is an- other matter.) It has been a common mistake, though, in many development projects to focus on the opportunities presented by new technology, while paying less attention to the requirements of the clients and the operation in question. The work of design- ing a new IT support system must therefore be undertaken by people who are knowledgeable about operations in co-operation with people possessed of IT expertise. In this section I will discuss some possibilities for developing the court system with the aid of an improved IT support system. I will first deal with issues concerning the organisation and work- ing methods of the courts and then issues concerning information management. 4.1 The internal organisation – The courts prioritisation of its work In the above section I have pointed out the significance of the clients perspective in the development of the new op- erational support system. This perspective can also be used in the individual court and be the factor that guides planning and allo- cation of priority. With the help of the new IT support system the courts will be able to analyse the work facing them and to fore- cast case flow etc. on the basis of historical data. Such analyses and forecasts can then be used to plan and organise operations in order to achieve the greatest possible client value. I believe that the courts which utilise these opportunities will be organised and will work in a completely different way from that which has been normal in recent years. I will only raise a couple of aspects here in respect to organisation which may be handled differently if a client perspective is employed at the same time as a powerful IT support system is in place. 4.1.1 Division of the work within the court The allocation of cases, and thereby the division of work, is nor- mally carried out when a case arrives at the court. The allocation is thus made when it is known at least how much work will be required to deal with the case. This is often done primarily among the judges as the courts strive to achieve an equal distribution of work, and as this shall also lead to fairness for the clients. A well-developed IT support system can also provide more scope for taking the clients requirements into consideration when allocating the work within the court. The allocation of the work can be done at several different times and can relate to other factors than the complete case management. An initial allocation of the work should be complemented by the opportunity for re-allocation and redistribution of goals and work assignments. This can be done with the aid of planning tools which can be used successively as it becomes known to the court how much work the case actually involves. The basis for allocating work within the court system can be done better than is usually done at present. A case is often allocated to an organisational unit, usually a de- partment, which handles the case from beginning to end. The norm is that the case remains with the same department all the time it is being dealt with in the courts. This can almost be com- pared to actually dividing a court up into a number of smaller courts with a more or less well-developed degree of co-operation. The development in other areas of society is heading in the direc- tion of larger units with more flexible organisations. I believe that the courts will follow in this direction and go from acting as individual proprietor enterprises to becoming large-scale enter- prises. This development can be seen in respect to the external organisation where courts are merged to form larger units, but this must be followed by a corresponding change in the internal organisation in order to be able to achieve an increase in client value. With the aid of a modern support system, it will be pos- sible for new organisational forms to be created without entailing any loss of control over the organisation. One possible develop- ment is that not all incoming cases are dealt with in the same way and in one joint organisation, different organisations instead be- ing created within a court, depending on the amount of work re- quired for the various cases. 4.1.3 The meeting with the client In the operational analysis which was carried out as part of the development work on a new operational support sys- tem, the courts often returned to the issue of various elements which interrupt the planned operation. One such element which the court staff found annoying was all the telephone calls from parties etc. We discussed various solutions to this and sugges- tions were advanced, including limiting telephone time so that the work in court could flow better during working hours. Such a solution, however, is not exactly client-oriented. One should think instead in terms of a very important part of the work con- sisting in having contact with clients and informing them about what is happening in the case. This should be taken into account when considering how the work should be organised with the aid of an operational support system. The meeting with the client is important, and in this respect there are major opportuni- ties for creating client value. Existing organisations and work forms are often based on the client finding the right person in the court in order to obtain answers to his/her questions. When the whole organisation has the opportunity to access information about all cases, opportuni- ties are opened up for organising the meeting with the client dif- ferently. In other organisations various types of are often used to deal with telephone enquiries. Such solutions re- quire good access to information, which the IT support system can provide, and knowledge about the operation and authority within certain frameworks to act and provide information. I be- lieve that there can be good opportunities to work with such solu- tions, even across court areas of responsibility. Many questions about case management can probably be answered and documen- tation provided by persons who work in several courts. This leads on to issues about the external organisation of the judiciary, and issues concerning the boundaries of responsibility between courts. I am convinced that the existing way of demarcating boundaries of responsibility between the courts can be improved if one means here improvements from the clients perspective. 4.2 The new external organisation – The court district IT support can be used in order to create a more flexible and cli- ent-oriented internal organisation.