León Felipe Aguilar Jiménez participates in the IR Global Disputes Virtual Series – Technology & Disputes: The impact of new technology on litigation and dispute resolution

León Felipe Aguilar JiménezPartner, CAMYA

Foreward by Andrew Chilvers

For the legal sector, COVID-19 has been a huge catalyst for change globally. Overnight, almost all legal advisors decamped en masse from their expensive mid-town and city offices to their homes to work. Personal meetings suddenly disappeared to be replaced by virtual meetings on Zoom or Microsoft Teams.

As the UK went into Lockdown only 2% of lawyers admitted they worked from home, according to a recent survey by RollOnFriday. com. Those attitudes have now changed radically as countries and territories around the world have gone into Lockdown and the vast majority of people have become home workers. Now almost 75% of legal advisors admit they would happily work from home three days a week and – amazingly – only 7% said they wanted to return to the office full time.

Above all, working remotely may have broken the longstanding links between office and work. Some 44% of respondents said in the long term they only wanted to return to the office for two days a week at the most. Many lawyers also believe working from home is good for their work /life balance. Elsewhere, many have said working remotely significantly improves efficiency, with less commuting time and disturbances around the office. In this virtual series legal members of IR Global gave a fascinating insight into this new world of working and how each jurisdiction has been handling their operations during Lockdown and the post-COVID-19 period.

What steps are you taking to adapt your services to the new remote working environment?

As a consequence of the health contingency, Mexican authorities established several restrictions for office work. Therefore, the legal sector – which until that moment used to maintain its operation onsite – was forced to implement new technologies to ensure the continuation of the services. It is important to note that in the Mexican case, legal service providers were sceptical about the convenience of using technologies.

In that sense, as a result of sanitary restrictions, the sector related to the provision of legal services adopted technologies to facilitate remote communication. Among the tools adopted we can find several video conferencing apps such as Zoom, GoToMeeting, Cisco WebEx and Google Meet, among others.

As of August, Federal and State Courts have resumed their activities in person; however, they have sought to maintain social distancing by means of virtual proceedings, as well as the review of case files and filing of documents electronically.

At Camya Abogados, as of 2015, we have integrated a “virtual docket” (with the same content as judicial docket) for remote consultation, using tools such as Google Drive. With the above, in addition to immediate access to information, we have benefited our clients who have the facility to consult the status of their affairs directly, with this we keep our clients informed in “real time”.

As consequence of the health contingency, without a doubt, there have been important changes in the way of litigating; however, we have the technology and personnel to respond to the new requirements.

Virtual commissioning – are we there yet?

Legislation for the use of technologies, specifically through the use of electronic signatures, is regulated by the Code of Commerce, whose scope corresponds to acts performed by people who are considered to be merchants in Mexico.

However, in terms of the provisions applicable to the validity of electronic signatures, the intervention of a third party acting as a certification authority is required. It is a reality that to date the use of electronic signatures has been limited to the private sphere.

It is important to consider that in Mexico’s legal practice there has been an abuse of formalities in both private and public spheres, an issue that remains deeply rooted to this day and which, as a consequence, generates widespread skepticism regarding the usefulness, liability and certainty of electronic means.

In addition, in Mexican Law there are certain legal acts which in order to be granted require the fulfillment of formalities, such as the subscription before a Notary Public, among others.

Based on the above, the celebration and/or subscription of legal or judicial acts through electronic means has been limited by the entrenchment of excessive formalities, as well as by the compulsory intervention of third parties.

Nevertheless, in the private sphere there is a tendency to accept the use of new technologies to simplify the celebration of acts (DocuSign, AdobeSign), which have been well received in the corporate area.

An additional aspect to be considered is the lack of judicial criteria in this matter, precisely due to the novelty of the technologies implemented. However, we consider that there are sufficient technical and legal elements to sustain the validity of those acts held through the use of these technologies.

What is happening regarding online dispute resolution in your jurisdiction?

At the jurisdictional level, Mexico has developed various tools for the processing of online trials (both federal and state levels), which have made it possible for certain legal proceedings (especially those of an urgent nature) to continue during the period in which health restrictions were imposed.

At the federal level, there is a robust technological platform that allows the filing of lawsuits, attending trials and holding hearings remotely. In certain cases, the entire trial can already be conducted electronically through this platform. However, at the state level most states are at an early stage of developing or implementing platforms that allow the processing of online trials.

Due to health contingencies, judicial authorities have adopted the use of tools such as Google Meet or Zoom for the holding of hearings. In this regard, both judges and defendants have welcomed the implementation of such technologies because, in addition to reducing health risks, they help reduce excessive time spent on transport, as well as on hearings or court proceedings (it is to be noted that Mexico has a serious problem with public and private transportation, causing people to lose a considerable amount of time on rides from one place to another).

On the other hand, the implementation of remote hearings raises important questions regarding the effectiveness of the use of technologies, such as (i) the certainty and security of the proceedings developed through these means, (ii) conflict of evidence, (iii) witness credibility, and (iv) reliability and credibility of the parties, among many others.

Besides the issues arising from remote hearings per se, Mexico is a country with a high level of social and economic inequality, which implies that many sectors lack access to the Internet, not to mention computers or even electricity.

Regarding the rise of technology, how much do you understand about blockchain for your clients?

In the Mexican case, the understanding that litigants have with respect to blockchain is certainly limited.

In this regard, it is illustrative to note that only on January 1, 2020, commenced the processing of commercial trials in oral form in Mexico. This implies that up to 2019, most commercial trials were processed in written form. In that sense, in the judicial practice there is little to no knowledge of blockchain and the understanding and scope of it is an issue that is pending development in Mexico.

However, the use of blockchain technology in the judicial field could be linked to the development of online trials, a matter that would certainly help to generate more confidence regarding the acts performed in court (an aspect that is of great importance for litigants nowadays).

In Mexico, blockchain technology could benefit and simplify the collection of evidence on trials by eliminating the compulsory intervention of third parties in evidentiary processes; however, there are still many aspects to be advanced in this regard.