Lunch seminar with Carolina Fabara
Foreign-Commercial Litigations adopting digital technologies
The right to access the courts is a basic human right in civilised societies, but the current legal system is unfriendly and often unaffordable for the victims of e-commerce disputes and copyright infringements seeking access to justice. Consequently, the Chinese government attaches great importance to the application of digital technology in the administration of justice, and makes every effort to promote the digital technology in the process of judicial reform. In foreign-related cases, digital technology has a profound impact on the case, which has changed the previous way of handling cases to a great extent. Therefore, how to design a judicial system that is more accessible has become a critical legal point of contention in the digital economy era. In China, the notion of an Internet Court, which substantially enhances popular access to justice, is a significant judicial innovation. It is of special significance for those lawsuits with small value claims and online evidence, and in which the parties are separated by long distances. However, these Internet Courts leave much to reflect on, including whether due process can be guaranteed, whether public trial can be fully implemented, and whether blockchain-based evidence is absolutely admissible.
With the rapid development of the digital economy, most commercial activities have moved from the physical world to the Internet, and disputes arising from e-commerce have increased rapidly. E-commerce buyers and sellers are often located far apart, even located in different countries. When a dispute arises from e-commerce, the sufferer is often the consumers with weak negotiation power. If a consumer wants to claim damages from the seller, they must file a lawsuit in the court where the seller's headquarter or where the main business office is located, in accordance with current global legal systems. To bring a lawsuit, consumers often must pay high litigation costs, such as for the time, money, and labour spent on multiple court sessions. Moreover, the evidence of e-commerce disputes is usually on the Internet, so it is not easy to raise evidence in the physical courts. In addition, the transaction amount of e-commerce is usually small, but the litigation cost under the traditional litigation system may be close to or even higher than the amount of compensation that can be sought. As a result, although each country has its own judicial system, many injured parties have no motivation to file lawsuits.
One special approach adopted by e-court is an ‘asynchronous trial’, which allows the litigants and their representatives to log in at different times to participate in hearing as the time difference is one of the major obstacles of online court or arbitration for international cases. For example, a Taobao shop owner Ms Wang who lives in Canada was sued by her Taobao client in China at Hangzhou e-court. Due to the 12-hour time difference between, Ms Wang can only participate in the online trial late in the evening or in the early morning if a virtual hearing is to be conducted. However, under the asynchronous trial, she was able to answer any question raised either by the opposite counsel or by the court at the convenience of her own time by logging into the system and record her answers or vice versa. In the end, the judge could hear the entire arguments recorded by the system and print out the transcripts.
From the perspective of digital technology, foreign commercial litigation in China is undergoing significant changes and challenges. This paper will discuss about some key aspects to consider such as technology in the judicial process, this includes electronic filing of legal documents, online hearings, and case management through computer systems. Also the digital evidence such as emails, text messages, and online transaction records. Moreover, Chinese courts have developed guidelines for the proper handling of digital evidence in legal proceedings. For instance, China's Cybersecurity Law impacts how foreign companies handle data and cybersecurity. Complying with these regulations is crucial to avoid digital security litigation. Therefore, the protection of personal data and privacy are important issues in commercial litigation. China has implemented data privacy laws and regulations that must be considered in cases involving personal or business data. The protection of intellectual property is an important aspect in commercial litigation. Digital piracy and copyright infringement are issues that can arise and must be properly addressed in the legal context.
It is critical that companies engaging in commercial litigation in China understand how digital technology can impact their cases and ensure they comply with local regulations related to technology and data privacy. Working with attorneys and legal experts with specialized knowledge of digital technology and Chinese jurisdiction is essential for proper representation in cases of this type. Especially in the foreign-related litigation, the digital litigation is reflected in: facilitate the parties to participate in litigation; save judicial resources; reduce the litigation costs of the parties; improve trial efficiency; strong replicability, there is the possibility of large-scale promotion. This paper will analyze how China constructs the foreign-related litigation legal system under the Internet thinking, the use of digital technology to promote the settlement of foreign-related litigation cases, and the characteristics of new foreign- related litigation cases produced by digital technology. Finally, this article concludes with discussions about how to balance the efficiency of litigation with the correctness of judgements.
Speaker bio
Carolina Fabara Verdezoto, lawyer of the Courts of Justice of the Republic of Ecuador from the University of the Americas. PhD candidate in International Law from the University of Political Sciences in Beijing, China. She has a Master of Laws (LLM) with a focus on business and economic law from Shanghai University of Finance and Economics, China. Specialist in Business Law from the Universidad Andina Simón Bolívar.
Carolina's area of research covers business law, international investment law, Chinese foreign investment law, and comparative law. She has been invited to give conferences on topics related to business law, women's rights and sustainable development goals.
Author in various legal journals in Latin America on issues of business law, gender equality and entrepreneurship. Her area of interest is the internationalization of companies, business development, legal consulting, as well as digital business. Her career is committed to defending women and supporting their economic empowerment.
Meeting ID: 667 1985 2254
Passcode: 634161