On 22 March 2018, a public debate was organised at the University of Amsterdam on the so-called 'robot judge', in response to recent commotion about online arbitration in consumer cases in the Netherlands, offered by e-Court. E-court promises to provide an easier and cheaper alternative for adjudication before a State court. Most Dutch health insurance companies have included e-Court in their standard terms and conditions as a means for dispute settlement. For example, they bring their claims to e-Court in the event that customers do not pay their medical bills in time. Such claims are almost always allowed, since they mainly concern default cases. The health insurer then only needs to ask the State court for leave to enforce the arbitral award.
De Groene Amsterdammer recently published an article by Investico about e-Court, which questioned its modus operandi. For example, it is unclear whether individual defendants are even aware that arbitration is not mandatory for consumers. Another problem is the lack of transparency: it is unclear who the arbiters are and how they reach their verdicts. The arbiters are anonymous and the verdicts are not published. It is unclear whether the basis of the claim is duly checked and whether the guarantees that EU consumer law offers are properly applied. E-Court itself states that they will continue their successful initiative and that judiciary criticism stems from fear of competition.
Professors Ruth de Bock, Marco Loos and Evert Verhulp as well as investigative journalist Tim Staal discussed the pros and cons of the so-called 'robot judge'.
Whether you are a fan of alternative dispute resolution (ADR) or not, everyone agreed: the article in De Groene Amsterdammer was definitely a wake-up call for the judiciary. Typical e-Court defendants are people who are unable to pay their health insurance. It is therefore disproportionate to ask 482 euros in court fees for matters concerning less than 500 euros. For those with weak cases the risk of going to court is simply not favourable; the costs are too high. Someone in the audience even spoke about these costs as an unacceptable obstacle to the right of access to justice. In ADR parties know much faster where they stand without having to pay a lot of money.
Although e-Court did not set a good example, Professor Verhulp pointed out that the possibility to pre-sort cases through digital procedures without having to go to court is something we should consider more seriously. For example, it would help parties estimate how strong their case is, before they determine whether or not to go to court. If it turns out that chances are that they will lose, it will help them not to incur unnecessary costs associated with legal proceedings. But when there is a good chance of winning the case, it may be a motivation to go to court. In addition, through such digital preliminary procedures, it will be easier to focus on what the dispute is actually based on. If you let both parties enter data and thus see at which points they disagree, a judge knows which questions to focus on. When such developments in the future are further improved into a true 'robot judge', it is important that such systems remain completely transparent and can always be challenged.
On the other hand, one must be aware that alternatives do not amount into "default factories". The core question of the debate about ADR, is if and how efficiency may be at the expense of procedural safeguards. Both in the audience as well as in the panel, people feared that the 'robot judge' will deprive the judiciary of its human touch. Professor de Bock strongly opposed the idea that there would be a market for dispute resolutions. The judiciary offers certain institutional safeguards that are of fundamental importance, such as the fact that all verdicts are published and therefore open for criticism. The value of certain procedures such as the assurance that both parties are heard and the oral hearing should not be underestimated. A judge in the audience pointed out the importance of parties explaining their stories, who will then try to find out what actually happened. Especially in cases concerning debt issues, it is not only important to force people to pay, but also to help them realise what went wrong.
Tim Staal pointed out that e-Court appears to automatically assume that you agree with the digital arbitration procedure. In total, only six people have opted for a State court. It is not obvious that of the large number of awards that e-Court has given out, everyone was well aware they agreed to arbitration. Many people do not realise that an arbiter is not the same as a government judge. The article in De Groene Amsterdammer also showed that people are often persuaded to opt for e-Court because they do not fully understand what it entails. Moreover, Professor de Bock pointed out that it is questionable whether under current Dutch law it is even permissible at all to have judgments awarded by an automatized system. Can a judgment be issued solely by a 'robot judge' if this means the total absence of human beings? And is the court's minimal test to grant permission still sufficient in view of EU consumer law?
It is time to submit these pressing questions to the Supreme Court, or even better, the European Court of Justice, before the robot judge is more than just a 'digital mailbox'. Professor Loos argued that many ADR mechanisms do meet the standards of European law. However, there is always room for improvement, perhaps in a system in which the governmental judiciary and alternative dispute resolutions can complement each other. Professor de Bock suggested that perhaps it could be made possible for arbiters to be able to turn to a government court in case of pressing questions about, for example, the application of EU law. (See in this respect: http://recent-ecl.blogspot.nl/2018/03/arbitration-and-effective-consumer.html)
E-Court turned out to be a blessing in disguise. It raised may questions about how we want the judiciary to modernise. Where one person considers it impermissible that efficiency prevails over the guarantees that our law offers, the other sees it as a great advantage for the judiciary that the 'robot judge' offers a more efficient alternative. Hopefully soon a court will be able to ask preliminary questions about how to cope with the clash between the efficiency of e-Court and the procedural safeguards the judiciary offers.