Innovation, technology and the rule of law

José Luis Sosa

GALA, Panama City

jsosa@gala.com.pa

Conference report

Biennial IBA Latin American Regional Forum Conference: Technology, social media and artificial intelligence: challenges for the legal industry in the digital age

23 March 2023

Breakout session 7

Session Co-Chairs

Carlos del Rio Creel Garcia-Cuellar Aiza y Enriquez, Mexico City; Conference Quality Officer, IBA Latin American Regional Forum

Erika Villarreal Anzola Robles & Asociados, Panama City; National Representatives Officer, IBA Young Lawyers’ Committee

Speakers

Diego Salto Consortium Legal, San José

John Dedyo Hunton Andrews and Kurth, New York City, NY

Ximena Camacho Chevron, Bogota

Carolina Aguirre BAQSN, Santa Cruz

The session, led by Co-Chairs Carlos Del Río and Erica Villareal, discussed panellists’ perspectives on how technology has affected the rule of law in their respective jurisdictions.

Roberto Durrieu began the discussion by commenting on his experiences as a litigator in Argentina and explaining that, in his view, there is an ongoing tension between how judicial proceedings are conducted and advances in technology. This tension is caused by the tug of war between technological advances on the one hand, and due process, privacy, and other basic rights on the other.

For instance, with regard to evidence, the matter of confirming the veracity of a particular document and confronting the possibility of the submission of fake digital documents poses particular challenges that did not exist prior to the advent of these new technologies.

Ximena Camacho provided her perspective as in-house counsel in a particularly regulated industry and stated that while the use of technology by judicial and administrative agencies has been a positive change, there are still instances of push-back from certain authorities, for instance, due to a lack of understanding these new tools. Therefore, the choice of using technology does not only depend on lawyers and their clients but also on all the relevant stakeholders, including government entities. Camacho commented that in regard to particularly sensitive matters, this push-back or potential push-back often leads to favouring ‘traditional’ methods, rather than relying on more modern iterations.

Diego Salto offered his views as a tax practitioner and explained that, in his opinion, the adoption of technology can be described in three distinct phases, related to the Covid-19 pandemic:

• Pre-pandemic – most jurisdictions allowed some limited use of technology such as e-filing for new administrative processes, but did not allow, for instance, virtual hearings;
• Pandemic – during the pandemic, virtual meetings and hearings were first allowed (at least in Costa Rica), thereby creating a more expeditious process; and
• Post-pandemic – a hybrid scenario, where traditional practices now coexist with technological solutions and innovations from the pandemic phase.

Responding to a question from Erica Villareal, Salto also commented that while the use of technology comes with inherent data protection risks, the reality is that, on balance, technology has transformed into further transparency, higher levels of compliance and collections, as well as lower costs. So even with the existing risks, which are admittedly real, the net effect is positive.

Carolina Aguirre explained that in Bolivia, an interesting example of the use of technology is the new digital citizenship, whereby the physical presence of the person making a filing is not needed, for instance, for personal notifications and other proceedings. The significance of this new tool is that it guarantees recognition by authorities of the filings and processes that are subject to the digital citizenship regime.

Finally, John Dedyo commented that, in his experience as a finance lawyer, technology is creating situations for which existing law is unprepared. For instance, the volume of electronic financial assets has increased exponentially and while lenders of these assets are looking for certainty in execution of the borrower’s obligations as well as of any existing collateral, for some of these new asset classes, rules have not yet developed to the point where sufficient certainty is available.

In some of these areas the law was changed prospectively in the United States (for instance UEDA and changes to the UCC to address electronic chattel paper). These changes have supported the growth of these particular asset classes, perhaps creating a model for other technologies.

In other areas, such as the US mortgage market, the process is still very much paper-based. That process still requires a filing at the county level, in the county where the property is located, and this process can be very cumbersome.

In his closing remarks, Co-Chair del Río posed a very interesting question by commenting that he had asked ChatGPT for an example of the use of technology in a legal context in Latin America and was provided with a picture of a person in a rural area accessing judicial records on their mobile phone. This caricature led del Río to consider whether technology would in fact have an impact on delivering justice.

In general, the session had a very positive outlook on the implementation of technology in legal arenas, with the caveat that, as lawyers we must ensure that proper measures are taken to seek certainty for clients.