CIVIL COURTS COPING Bart Krans & Anna Nylund (Eds.) CIVIL COURTS WITH COVID-19 COPING WITH Krans & Nylund (Eds.) COVID-19 CIVIL COURTS COPING The unforeseen Covid-19 pandemic has propelled, and continues to propel, unprecedented transformations to civil proceedings and the landscape in which they operate. Courts have proven to be creative and innovative in their responses to the pandemic, and in their ability to implement digitisation of paperwork and remote hearings. This book contains a comparative study of how courts in 23 countries have coped with the pandemic, addressing selected innovations and adaptations to court proceedings, factors facilitating and impeding the digital leap, and new concerns that new technology and the pandemic engenders. The authors discuss the implications of digitisation, such as ensuring equal access to courts, novel issues concerning fair trial rights in remote proceedings, the role of alternative WITH dispute resolution during the pandemic, and the roots of resistance to digitisation. Several contributions also address whether and how innovations during the pandemic may transform civil litigation in the future. COVID-19 About the editors Bart Krans is full professor at Leiden University, the Netherlands, where he holds the chair of private law and civil procedure law. His main research areas are civil procedure law and contract law. Anna Nylund is full professor of law at University of Krans & Nylund (Eds.) Tromsø – The Arctic University of Norway (jur. dr University of Helsinki). Her main research interests are national, comparative, and European civil procedure and alternative dispute resolution. ISBN 978-94-6236-204-8 9789462 362048 Civil Courts Coping with Covid-19 Civil Courts Coping with Covid-19 Bart Krans and Anna Nylund (Eds.) Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 email: [email protected] www.elevenpub.com Sold and distributed in USA and Canada Independent Publishers Group 814 N. Franklin Street Chicago, IL 60610, USA Order Placement: +1 800 888 4741 Fax: +1 312 337 5985 [email protected] www.ipgbook.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. creative commons license: BY-NC-SA ISBN 978-94-6236-204-8 NUR 822 © 2021 The authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Preface In September 2020, we asked selected colleagues whether they would be interested in participating in a study on how civil courts have responded to the Covid-19 pandemic by writing a short text on the situation in their own jurisdiction. Their immediate and positive response was heart-warming, and by the end of the year, we had received all contributions. This excellent response and the swift delivery of the individual chapters are especially remarkable since the pandemic has not only had adverse consequences on civil proceedings. University teaching staff have also come under great pressure. They faced the sudden need for a new way of teaching in line with Covid-19 measures, having to switch to online teaching in addition to, or in lieu of, face-to-face teaching. We are immensely grateful that so many colleagues decided to join this book project at such short notice and despite the challenges of life during the pandemic. It has been a most enjoyable and rewarding experience. We would also like to express our gratitude to Leiden University students Emma Stekelenburg and Julie Reynders for assisting us during the final stages of this project. Without doubt, their fast and fabulous work ensured a smooth process in finalizing the manuscript. Finally, a word of thanks to publisher Eleven. It is not a given that a publisher agrees to make an online publication available online and open access – and make a ‘real book’ at the same time. We greatly appreciate their willingness to meet our needs in this regard. The publication charges for this book have been partially funded by a grant from the publication fund of the University Library of UiT The Arctic University of Norway and by the Department of Private Law of Leiden University. Leiden/Tromsø, 15 February 2021 Bart Krans and Anna Nylund v Table of Contents Civil Courts Coping with Covid-19 – Exceptional Times, Normal Times, New Times? 1 Bart Krans and Anna Nylund Responding to Covid-19 – Australian Civil Courts in 2020 7 David Bamford The Impact of Covid-19 on Civil Procedure in Belgium 15 Piet Taelman Brazilian Precedents in Covid-19 – Supreme Court Matters? 25 Fredie Didier Jr., Hermes Zaneti Jr. and Ravi Peixoto The ‘New Normal’ of Civil Procedure in Canada – Technological Efficiency over Proportionality and Accuracy of Outcomes 35 Catherine Piché Civil Justice in China in the Covid-19 Period 41 Yulin Fu Croatian Civil Justice v. Covid-19 – The Empire Strikes Back 47 Alan Uzelac Digitalization of Danish Civil Justice – Perspectives from the Pandemic 57 Clement Salung Petersen Developing the New Normal for English Civil Procedure Post Covid-19 63 John Sorabji Pandemic and Digitalization – The Situation in the Finnish Lower Courts 73 Laura Ervo Covid-19 and French Civil Justice – What Future for Civil Hearings? 83 Frédérique Ferrand Covid-19, Civil Justice 2020 and German Courts 2021? 93 Wolfgang Hau vii Table of Contents Covid-19 and Civil Justice – News from the Italian Front 103 Elisabetta Silvestri Impact of Covid-19 on Japanese Civil Justice 113 Shusuke Kakiuchi Impact of Covid-19 Pandemic on Lithuanian Civil Justice 123 Vigita Vėbraitė The Aftermath of the Covid-19 Pandemic in the Netherlands – Seizing the Digital Gains 129 Bart Krans Covid-19 and Norwegian Civil Justice 139 Anna Nylund Peruvian Judicial System during the Covid-19 Pandemic 147 Christian Delgado Suárez Transformation of Polish Civil Procedure in Light of Covid-19 155 Piotr Rylski Singapore Civil Procedure and Covid-19 167 Jeffrey Pinsler Coping with an Outdated and Rigid Civil Procedure in the Era of Covid-19 – The Experience of Slovenia 173 Aleš Galič Civil Justice after the Covid-19 Pandemic in Taiwan 179 Kuan-Ling Shen The Impact of the Covid-19 Pandemic on the Civil Procedure in Uruguay 189 Santiago Pereira Campos Covid-19 and American Civil Litigation 195 Richard Marcus Conclusions on Civil Courts Coping with Covid-19 205 Anna Nylund and Bart Krans viii Civil Courts Coping with Covid-19 Exceptional Times, Normal Times, New Times? Bart Krans and Anna Nylund* 1 Unforeseen and Unprecedented The unforeseen Covid-19 pandemic has propelled, and continues to propel, unprecedented transformations to civil proceedings and the landscape in which they operate. Numerous countries across the globe have faced and continue to face the question of how to enable courts to cope with civil cases despite numerous restrictions to the operation of societal functions. After the initial almost full stop in the machinery of civil justice at the onset of the pandemic during the first six months of 2020, courts needed to resume delivering justice. However, many pre-pandemic practices, rules and standards were clearly inappropriate for the new reality, and since the end of the pandemic was not imminent, the civil justice system had to adapt to the exceptional, labile societal circumstances. In late April 2020, we published a study on the initial reactions of civil justice to the pandemic. The study gave a snapshot of the initial reactions of 15 civil justice systems. Courts in all 15 countries were in the process of making a digital leap, but there were still considerable differences among the countries. While we could already see the contours of strategies for coping with the exceptional situation in April 2020, many issues were only emerging at that time. By the time of the present writing, February 2021, some of these issues have become salient. Hence, we attempt to explore how civil courts across the globe are coping with the effects of the pandemic. What have been the most pressing problems, and how have these problems been resolved? What kinds of factors have facilitated or hindered courts pivoting from paper-based and face-to-face hearings to paperless proceedings and remote hearings? What issues does the technological leap engender? What mechanisms other than digitisation help courts continue to operate during ‘the state of exception’? Has the pandemic produced a shift in the role of courts? These and many other questions have emerged.1 * Bart Krans, Professor Private Law and Civil Procedure Law, Leiden University, Netherlands; [email protected]. Anna Nylund, Professor of Law, University of Tromsø – The Arctic University of Norway; [email protected]. 1 In November 2020, the report ‘The functioning of courts in the Covid-19 pandemic’ was published by the Organization for Security and Co-operation, www.osce.org/odihr/469170. See also European Law Institute, 1 Bart Krans and Anna Nylund 2 Different Circumstances, Different Responses to the Pandemic Every single day since February 2020, we have been faced with data on how the number of Covid-19 infections, hospitalisations and deaths have surged and declined at different tempos in each country and region. In parallel, we have experienced measures to contain the spread of the virus: social distancing, curfews, lockdowns and so forth. Since both the spread of the virus and the measures vary across countries – and even states and regions within countries – the impact of the pandemic on civil justice also varies. That variation, combined with pre-pandemic differences among the civil justice systems around the world, renders it quite challenging to make firm statements on the impact of the virus and the measures taken to address it on civil justice systems globally.