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Rapid digitalisation of dispute resolution in the wake of covid-19 measures

The spring of 2020 led to upheaval for civil dispute resolution in Norway. Measures to combat spread of covid-19 abruptly halted oral hearings in most cases. The backlog of cases could face a very serious increase, and the right to have a case determined within reasonable time was at risk. New legislation was quickly introduced to facilitate use of video hearing. The new temporary rules have benefits, which could justify that they are made permanent.

Thursday 12 March was a remarkable day in Norway. Schools and kindergartens were shut down, most employers ordered their employees to work from home, and in courts of law, almost all oral hearings were cancelled. The following day very extensive measures were adopted under the Norwegian legislation for communicative diseases to limit as far as possible the spread of covid-19.

To avoid a complete halt in critical functions in the society, the Government proposed a law – the Corona-law – which would give vast derogatory authority to give regulations contradictory to statutory law. After strong reactions from among others The Bar Association, the scope of the law was narrowed significantly and the possibility to court control with the use of the derogatory authority was strengthened.

The Norwegian Parliament adopts new Corona act

After a few weeks, a new intermediary act was passed, which specifically changes the rules for civil litigation. The most prominent feature is the court’s new possibility to decide that an oral hearing shall be held by use of videoconference.  The first fully digital main hearing before a district court was held in March. It was quickly followed by an oral hearing in the Supreme Court.  As judges and counsels would often participate from their home, the ordinary use of robes could seem a bit strange. Thus, the new rules allowed for oral hearings without a robe, even for Supreme Court justices.

Smitterverntiltakenes innvirkning på rettslivet  (Norwegian only)

This use of video technique has several benefits. Firstly it is necessary to be able to get cases adjudicated when trying to limit the spread of covid-19. Otherwise the courts would only be able to handle a small number of cases by using their largest court rooms and strictly limiting access. Secondly video hearings allows for easier access to follow the oral hearings by the public, who can now log into the hearing with a videolink in the case. And thirdly do video hearings contribute to keeping costs down, as there are no travel expenses etc.

Combinations of video and physical appearance are possible. I.a. may the court decide that the counsels be present in the court room, and that the parties and the witnesses appear by video.

It is almost a prerequisite for a video hearing that the case documents are fully digitalised and may be shared online.

Experience so far shows that it does not require a lot of expensive new equipment or software to participate in fully digitalised court hearings.  Not all cases may be suitable for a video hearing, but we are now gaining valuable experience on this field.

By taking this digital leap, the Norwegian courts may be able to keep their back logs down also in these times of combatting covid-19. Parties and lawyers who are not too scared of working in new ways, should wholeheartedly embrace this possibility.

Although the legislation that allows for increased use of video meetings is only temporary, it may have so many benefits that it should be made permanent.

And in any way, the experience we are now gaining, should make it more likely to consider video hearings as an alternative to expensive and timely travels and to avoid bulky paper bundles in the future.