Roger Canals participates in the IR Global Disputes Virtual Series – Technology & Disputes: The impact of new technology on litigation and dispute resolution

Roger CanalsPartner, Arco Abogados

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?

In Spain, authorities have ordered tough measures to help assist in the struggle against COVID-19, such as compulsory confinement at home for the whole population for two and a half months, and the lockdown of all the State Courts and administrative premises. Perhaps the only positive side of the issue has been that this has forced the whole of society to move forward in terms of remote working environment, which was previously just a topic of discussion.

But the whole country, and specifically law firms, have adapted surprisingly well to the situation. In terms of interaction with clients, traditionally they asked for face to face meetings, and now they’ve been forced to accept remote meetings and interactions (specially, through virtual platforms such as Zoom, Jitsy, Hangout, or similar). In turn, this has led to a major efficiency (avoiding travelling, which has been revealed as unnecessary and useless), and a cut in expenses. Paradoxically, those clients formerly requesting face to face meetings now request remote meetings.

To us, the crisis has accelerated a technological process which was already underway. Before the COVID-19 eruption, our law firm had already implemented remote working devices allowing full remote working of all our professionals. The pandemic has led to the generalised use of on-line working devices and platforms, and a less attendance to our offices / premises (to comply with restrictions imposed by the government). Overall, this has led to an improvement in many people’s work-life balance and there have been marked increases in operational efficiency and productivity.

State and arbitration Courts and Tribunals have also showed dramatic changes in Spain over the last months. Until the COVID-19 eruption, remote hearings in Spain were just inconceivable. The full confinement has left no other alternative than implementing remote hearings to keep Courts and Tribunals running. To my personal experience, this has revealed to be an extraordinary positive; no doubt that, once the pandemic is gone, remote hearings will stay in Spain as a way to reduce Court backlog.

Virtual commissioning – are we there yet?

As with the rest of the EU jurisdictions, use of electronic signatures are allowed and widely spread to sign documents under private seal in commercial transactions. The EU Statute 910/2014, thoroughly regulates the use of electronic signatures to sign documents under private seal.

However, pursuant to Spanish legislation, a great deal of transactions require a signature before a public notary for them to be valid and enforceable. For instance, mortgages, real estate transactions and wills must be compulsory signed before a public notary, for them to be valid and enforceable in Spain. This signature before a public notary cannot be performed remotely or on-line, requiring personal attendance to the notaries’ offices. All this has significantly affected economic transactions in Spain over the pandemic, as notaries offices have only been available between March 13th up to June 21st for very urgent matters (such as, for instance, to sign wills in cases of imminent decease risk).

Therefore, disruption caused by COVID-19 has revealed the urgent necessity of passing new legislation on the remote signatures of documents under public seal. The governments are already producing a draft regulating remote public signatures. However, its implementation will be remarkably difficult in Spain, as our system has been traditionally based in verification on the spot by public notaries of identity and legal capacity of the parties signing under public seal.

What is happening regarding online dispute resolution in your jurisdiction?

COVID-19 has brought, in some ways, a sort of revolution in Spanish state Courts functioning. As previously mentioned, extreme confinement measures have forced to introduce virtual online hearings for the first time in Spain, through the use of virtual platforms such as Zoom, Jitsi or Hangout. Considering the previous lack of remote hearings, its implementation has functioned so far unexpectedly well. However, there is still much to improve, especially regarding documentary evidence (our Court system is significantly based on documentary evidence submitted by the parties).

Claims serving to the defendants are also causing problems in Spain. Claims have been traditionally served by Court bailiffs, by personally attending the defendants’ domicile. This serving system has been significantly disrupted by measures implemented to fight against COVID-19, leading to delays in Court procedures. In its turn, this has revealed the necessity to introduce new ways of claims serving through electronic means, which are to date being analysed by the government.

Before the pandemic a public electronic platform already existed in Spain by which filing court claims could be done entirely online.

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

So far, no specific legislation regulating the legal uses, applications, regime, and effects of blockchain has been passed by Spanish lawmakers. Neither is there a widespread use of blockchain technology for legal purposes. Therefore, blockchain technology cannot be used to date in Spain as a valid legal means to record transactions. In addition, and to the best of my knowledge, there is not any project of new regulation on blockchain and its legal uses as an application in Spain.

From a litigation perspective, there are not specific restrictions to use blockchain technology as a mean of evidence before Courts, to prove the existence or the contents of any given contract or transaction. However, this would have to be done through computing experts appearing before Court, who would certify either the existence of the transaction and its contents.