According to an article in the ABI Journal, the COVID-19 pandemic is forcing common law jurisdictions and civil law jurisdictions to accelerate the move toward electronic signatures, electronic filings and remote notarizations.
“The novel coronavirus disease has altered the way that legal professionals practice law across the globe, as courts in both the common law and civil law traditions have had to modify the administration of law to do their part to enforce health restrictions,” Rafael X. Zahralddin-Aravena of Elliott Greenleaf, Antoine Leduc of Lapointe Rosenstein March and Melancon, and Olya Antle of Cooley wrote in the article, titled “COVID-19: A Catalyst of Modernization Across Jurisdictions.”
While courts closed then reopened primarily virtually, as their services are deemed “essential” functions in many jurisdictions, the authors wrote that some modernization efforts had already been underway long before the COVID-19 pandemic. Zahralddin-Aravena, Leduc and Antle pointed to three efforts prior to the pandemic shutdowns this year to move courts toward digital processes:
- Global Proliferation of Electronic Transactions: The United Nations Conference on Trade and Development reported that 145 countries across the globe have adopted laws to facilitate electronic transactions.
- Movement Toward Digitized Records, Electronic Filings and e-Signatures: Canada adopted the Uniform Electronic Commerce Act in 1998, and the U.S. has recognized electronic transactions, including smart contracts and electronic signatures, through the U.S. Electronic Signatures in Global and National Commerce (ESIGN Act), passed in 2000, as well as the Uniform Electronic Transactions Act, released in 1999.
- Electronic Notarizations and Remote Online Notarizations: Even before the pandemic, a number of states in the U.S. permitted electronic notarizations or e-notarizations, which involve the notarization of electronic signatures on documents in electronic format.
In light of the pandemic, Zahralddin-Aravena, Leduc and Antle wrote that many modernization efforts accelerated for court systems.
“In bankruptcy (and other federal) courts across the U.S., ‘wet signatures’ have been eliminated for most filings under the CM/ECF system; however, the majority of the U.S. bankruptcy courts have gone a step further by temporarily suspending the requirement to obtain ‘wet signatures’ on documents for which such signatures were required, including debtors’ voluntary petitions for bankruptcy relief,” the authors wrote.
While the modernization of the Québec judiciary system is still at an early stage, the authors wrote that all Québec Superior Court judges have received special training on video conference facilities and have formed a judicial IT committee. “There is no e-filing system, and new urgent applications must still be filed at the court registry on paper with court fees paid at the registry, but this is about to change in the forthcoming weeks,” the authors wrote. As legal systems throughout the world are propelled into the digital age, they will emerge from the current crisis dramatically transformed post-pandemic.”