Expanding the Shadow of the Law: Designing Efficient Judicial Dispute Resolution Systems in a Digital World — An Empirical Investigation

43 Pages Posted: 22 Jan 2024 Last revised: 30 Jan 2024

See all articles by Kathrin Eidenmueller

Kathrin Eidenmueller

Munich Court of Appeal

Conor McLaughlin

Erskine Chambers

Horst Eidenmueller

University of Oxford - Faculty of Law; European Corporate Governance Institute (ECGI)

Date Written: January 7, 2024

Abstract

This article presents the results of an empirical study on the design of efficient judicial dispute resolution systems for business-to-business (B2B) commercial disputes in a digital world. To the best of our knowledge, we are the first to undertake such an inquiry after the pandemic, post-Brexit, and in the face of an artificial intelligence (AI) wave which has gained momentum on an unprecedented scale in the last three years and has passed an inflection point. We interviewed 24 senior legal practitioners and business leaders, and we conducted an online survey which returned 275 responses from dispute resolution professionals worldwide. The majority of survey participants practice in the United States, in the United Kingdom, in Germany and in France. We argue that courts are also an indispensable part of the civil justice infrastructure for B2B commercial disputes. As far as stakeholder preferences are concerned, we find that the push for digitization and for using AI tools to improve the efficiency of judicial proceedings is strong. AI applications have already become a cornerstone of dispute resolution practice. “Online courts” should be “on offer” in commercial disputes. Providing user-friendly and reliable digital / AI tools for information management and analysis, communication and decision-making is key, as are clear protocols for online hearings. But disputing parties do not want to be judged by machines. Rather, they request competent and specialized human decision-makers. Courts need to be on top of the game with respect to the subject matter of the dispute. Parties also request planning and efficient case management. A case management conference and a process plan are essential. Finally, courts should offer an “early neutral evaluation” - a non-binding preliminary evaluation be a third party, with or without (mediated) settlement discussions - if the parties agree to this in the case management conference.

Keywords: Commercial Disputes, Litigation, Arbitration, Alternative Dispute Resolution, Civil Justice Reform, Empirical Analysis, Digitization, Artificial Intelligence, Online Courts

JEL Classification: K40, K41, O57

Suggested Citation

Eidenmueller, Kathrin and McLaughlin, Conor and Eidenmueller, Horst G. M., Expanding the Shadow of the Law: Designing Efficient Judicial Dispute Resolution Systems in a Digital World — An Empirical Investigation (January 7, 2024). Harvard Negotiation Law Review, Vol. 29, No. 2, 2024, Available at SSRN: https://ssrn.com/abstract=4686785 or http://dx.doi.org/10.2139/ssrn.4686785

Kathrin Eidenmueller

Munich Court of Appeal ( email )

Prielmayerstr. 5
Munich, 80335
Germany

Conor McLaughlin

Erskine Chambers

1 Paper Buildings
Temple
London, EC4Y 7EP
United Kingdom

Horst G. M. Eidenmueller (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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