Can UAE 'e-Justice' system help to tip the scales for SMEs?

Small and medium enterprises (SMEs) are said to be the backbone of the UAE economy. Are they that important? Well, yes.

In 2013, Dubai SME reported that SMEs accounted for 95 per cent of the enterprise population in Dubai and were responsible for 43 per cent of the total workforce and 40 per cent of the total value added in the emirate.

SMEs will assume even greater economic importance as the UAE and other Gulf economies diversify. To thrive, SMEs need access to cost-effective dispute resolution when they meet a bump in the commercial road. Digital technology and online courts will be of increasing significance in meeting that need.

Like London busses, you wait ages for a report into online courts, and then three come along in quick succession – the first, Civil Justice Council’s “Online Dispute Resolution for Low Value Civil Claims” in February 2015; the second, the non-profit group Justice’s “Delivering Justice in an Age of Austerity” in April 2015; and the third, Civil Courts Structure Review’s”Briggs Report” in December.

The reports provide a cumulative picture, culminating with the Briggs Report, which regards the development of an online court (OC) as the “most radical and important structural change” under consideration.

It is an ambitious plan. Digitalisation could provide “the biggest single opportunity” to design and build a wholly new court, enabling individuals and small businesses to vindicate their civil rights where access to justice is presently denied by a combination of prohibitive cost and procedural complexity. An OC would “offer the best available prospect of providing [affordable] access to justice for people and small businesses of ordinary financial resources”.

The concept depends on the introduction and imaginative use of IT, as well as on behavioural and cultural change.

Modern IT would enable parties to access, without professional help, online software, designed to elicit relevant information, evidence and documents by an interactive process, where successive steps would be responsive to answers already provided, building the picture to enable the court to determine the claim.

By and large, modern IT is better understood by the young than the old.

The UAE has a young demographic. SME start-ups tend to be inspired by young entrepreneurs. A career judiciary means a regular intake of young judges. With youth on its side in all those respects, the UAE is well-placed to explore e-Justice and the opportunities that an online court might offer for SMEs.

In UK, the idea is that an OC would prioritise dispute avoidance and containment, reducing the need to go to full court resolution – “putting a fence at the top of the cliff, rather than an ambulance at the bottom”, as the Civil Justice Council’s put it.

Prevention is proactive whereas cure is reactive. The proposal would involve a more interventionist and inquisitorial approach throughout the process. That is second nature in civil law jurisdictions where judges inquire. Even in common law jurisdictions, proactive case management is now the norm.

The intent is also to embed alternative dispute resolution in the OC process. A court trial would be a last resort. A range of alternative resolution options – explanation, early neutral evaluation and mediation – would be offered, as well as a choice of decision-making options – on the papers, using video-links or other technology or full oral hearing.

The consensus is for a three-stage OC process: evaluation (or “triage”), facilitation and adjudication.

In the first instance, the process would be largely informational via a series of online menus and pathways with telephone support. The objective would be to help the parties to set out their cases. Litigants need to be able to decide whether – and if so when and how – to bring or respond to a claim. SMEs can face an “advice deficit” if information is neither accessible nor affordable.

Facilitation would also be inquisitorial, participative and advisory (reviewing, advising, encouraging negotiation and helping to mediate).

Those stages would be overseen by administrators and legally qualified registrars (or facilitators), whose job would be to identify the relevant issues, the applicable law, the appropriate procedure and the evidence needed to resolve the case.

If everyone has a better grasp of the case, there is a greater chance it will settle – either because the parties themselves will appreciate the strength, or weakness, of their case or because the registrar can mediate or provide an authoritative neutral evaluation. Some cases will be more suitable for early neutral evaluation; others for mediation.

Even if those steps do not result in settlement, case management will be quicker, more efficient and consistent and judicial time will be saved.

To achieve this, administrators and registrars will need to be trained, responsive, capable of giving accurate and comprehensive advice, able to follow up as appropriate, and sufficiently supported and resourced. A clear policy commitment and adequate funding are essentials.

In a further move away from the usual common law approach, the Briggs Report sees even the OC itself as being “less adversarial, more investigative”. Thus, judges would receive no assistance in the law from the parties and may well need more training.

OC proponents say it would “be superior to conventional court service – quicker, less costly, easier to use, and less combative”.

It would not, therefore, be an economy fare in a business-class world. For SMEs without deep pockets, it might offer an attractive option.

Michael Patchett-Joyce is a commercial lawyer and arbitrator based in London and the UAE.

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