The technological trends shaping our world today are the same ones impacting all of society and industry including the maritime sector – from an on-demand digital economy that has massively transformed e-commerce to Artificial Intelligence (AI) which is upturning data-intensive sectors like the judiciary and blockchain technology which amongst other things is massively impacting global supply chains, one thing is clear: society is looking to justice and legal services sector that does not only understand how technology works, or that appreciates the use of technology to deliver efficiencies but one that also recognizes the new legal issues emanating from a technology-driven world and is able to engage appropriately.
A changing maritime industry, technology as a force
The technological forces that are fundamentally changing our world are powered by Industry 4.0 technologies. These emerging technologies are Artificial Intelligence (AI), blockchain, cloud computing, big data analytics, and the Internet of Things (IoT). Each of these technologies has impacted the maritime sector in diverse ways across its entire value chain.
Shipping is a massive global enterprise. Global spending on logistics reached $9 trillion in 2020, about 11% of the world’s gross domestic product (GDP). Third-party logistics, of which freight forwarding is a big part, amounts to nearly $1trillion. The Covid-19 pandemic coupled with geopolitical tensions and a variety of other factors had placed global supply chains on near-life support. Conversely, the exponential rise of e-commerce has equally trigged phenomenal growth in the logistics industry as a whole and the maritime sector, in particular. Global supply chains rely heavily on the shipping industry to meet the demands of an accelerating digital economy across the world. A bevvy of technology startups and incumbent corporations have risen to confront these developments with creative solutions to the problem.
Flexport, a technology start-up that provides an end-to-end platform to streamline communication between the various parties involved in the shipping process, and also allows cargo owners to track their shipments in real-time is an example of the disrupting force of technology in the Shipping world. Flexport relies heavily on AI-based technology, big data analytics, IoTs, and other industry 4.0 technologies to provide a service that is proving to be a life-saver in the maritime sector. Flexport is just one of many.
For a global digital society that has come to expect such efficiencies in service delivery in the maritime sector, it is little wonder that there is a similar expectation for a faster, more agile, and nimble justice and legal services sector to handle maritime matters. In a changing world, the needs of society are also changing. Hence, the digitization of society and industry has heavily impacted the terrains of dispute resolution and other legal and justice sector services.
There is however a “pacing gap”, in which technological developments rapidly outpace our society’s ability to catch up, including legal services and the judiciary. However, a thoughtful digital transformation process in the sector will close the pacing gap. Below are some considerations that will aid an expedited digital transformation of the legal services and justice sector to effectively manage maritime atters
Informed policymaking and developmental regulation in dispute resolution
A complex array of domestic and international laws, treaties, and commercial codes govern the world’s shipping industry across multiple jurisdictions. This necessarily impacts the management of maritime matters by the Justice system. In Nigeria, the Admiralty Jurisdiction Act vests the Federal High Court with jurisdiction in respect of admiralty matters. However, given the exigencies of maritime matters, there is a groundswell of Alternative Dispute Resolution interventions in the industry, particularly Arbitration. Regardless of the methods deployed in handling Maritime Matters, the underlying infrastructure required to support the use of technology is critical.
The Dispute Resolution ecosystem in Nigeria requires more suited rules and protocols for a digital economy. Particularly in industries that are becoming more reliant on digital technologies, such as the maritime sector. These will provide the needed support for the digital transformation already occurring in the sector. An example would be the need for specific Rules of Court guiding Digital Evidence or Digital Evidence in Arbitration such as the IBA Rules on the Taking of Evidence in International Arbitration and the UK Digital Dispute Resolution Rules. Underpinning these new rules would be policy that clearly articulates standards and best practices that will for instance balance the need for technology utilization with strong cybersecurity and privacy practices.
The Nigerian Judiciary Information Technology Policy Document (2012) (“the Policy”) outlined a compelling vision: To ensure a Justice System that is simple, fast, efficient, and effective —- by fully integrating technology into the justice administration system. The objective of the policy document was to serve as a guide for all organs of the judiciary by providing standards for the entire ecosystem of courtroom technologies, from Case Management Systems to E-Filing and Electronic Document Management Systems, to virtual libraries and to video conferencing and electronic court systems. Ten years after the policy was birthed, the technology landscape has evolved. The world had moved into another era of computing known as Web 3.0. This shift in computing means that the Policy is fast becoming obsolete and this poses a significant challenge to our current ways of using technology for legal services and justice delivery.
A revision of the Policy will require leadership that is aware of the opportunities that industry 4.0 technologies open up. It will require crafting a vision that encompasses the right technology, the right people, and the right processes and one that will be incremental in its digital transformation value-additions.
As already observed above, shipping is a massive industry and it underpins the world of e-commerce. An example is Amazon, an e-commerce giant and the world’s largest retailer that relies heavily on the maritime industry for its operations. Given the scale of these operations, our traditional systems of handling maritime affairs are already overwhelmed by the magnitude of disputes involving corporations, SMEs, and consumers. ebay an e-commerce platform and Paypal a payment platform, for instance, have used ODR mechanisms to resolve millions of disputes outside formal dispute resolution systems. Hence the growing need for more alternative platforms, international arbitrations, specialized proceedings, and the deployment of high-tech solutions to create faster and cheaper procedures. Furthermore, an Industry 4.0 world combined with Web3.0 realities forces us to consider the changing dynamics of court, arbitral proceedings, and other ADR mechanisms. Shai Sharvit, made this clear in a paper delivered at the Nigerian Institute of Chartered Arbitrators Conference, 2021 as follows:
“Typically, we tend to think of dispute resolution generally and about arbitration and international arbitration in a very dogmatic manner: (1) two or more parties, which we know who they are; and (2) who have a dispute over a very specific and defined property (real or virtual); and (3) they wish to resolve this dispute outside of the traditional court systems; and (4) they contractually agree to refer this dispute to a third person, who will determine the entitlements of the parties. This is a very general description of the process.
In addition to these general features, we usually add that the entitlement of rights between the parties is determined by an arbitral tribunal under the “supervision” or rule of law of a defined jurisdiction which also dictates the basic rules of these proceedings, and once there is a decision on the entitlement, the parties can still argue against the procedural aspects of the dispute resolution (in setting aside proceedings) or the merits of the decision (in appeal proceedings).
These concepts and our perception of the arbitration process and of the essence or nature of arbitration seem to no longer fit today’s New Digital World economy – new features and requirements such as nameless parties, trading platforms without any legal entity owning or operating them, no specific or single jurisdiction or set of laws governing or overseeing their operations, smart contracts that operate automatically, removing any need for enforcement proceedings are just a few examples of how this New Digital World economy has changed from the traditional economy …”
The implication is that the use of technology to handle such complex Web 3.0 issues in a maritime or another context will transcend the purchase and deployment of traditional IT equipment in courtrooms or at arbitral sittings, it will require an appreciation of deep technologies such as blockchain technology and Smart Contracts together with other modern approaches such as ODR. Dispute resolution mechanisms will therefore make provision for such emerging realities as anonymous parties in proceedings and DAO involvement in transactions.
Technology service infrastructure
The use of technology to deliver efficiencies in the justice sector, including Maritime matters is a very familiar concept. But most efforts in this regard have often failed to deliver the promised value to stakeholders. At the heart of leveraging technology effectively is an understanding of the dispute resolution or legal services value chain. In undertaking a digital transformation journey, it is helpful to map out the value chain or functional areas.
Typically, any dispute resolution or legal services value chain will involve resourcing and communication technologies as part of the service infrastructure. These include Case Management Software and stakeholders interaction software ranging from Document/Data Management Software to Virtual Conferencing tools. In addition to resourcing and communication technologies are Service Delivery and Engagement tools. These would include everything from Automated Document Assembly software, E-learning Software, E-libraries for research, Online Dispute Resolution tools, Intelligent Legal Search and Document Review tools etc. The modern iteration of these tools are Big Data-driven and AI-Based. Examples of cloud-based Virtual hearing solutions are Zoom, Webex, Microsoft Teams, and Google Meet.
Case Management Systems: Case Management and Court Management Systems are software used to manage data, documents, engagements, and all other legal services or justice administration processes. These are either on-premise or cloud-based solutions that provide for such services as e-filing of cases, optimization of case records, verbatim reporting of court proceedings, and automation of administrative processes. The Nigeria Case Management System developed by the National Judicial Council is an example of such a comprehensive system. Court Management Systems has also been deployed by Rivers and Oyo State Judiciary among other states.
Excellent Court Management systems are cloud-based and take cognisance of the entire value chain of judicial services. These include e-Courts, e-Probate, e-affidavits, e-ADR Courthouse, e-Small claims Court, e-family Courts, e-libraries, e-interaction, e-collaboration tools, and AI-based analytics systems to mention a few. Similarly, case management systems are tailor-made for legal services practitioners with bespoke features like Contract Management tools and E-mediation or E-Arbitration software.
Virtual conferencing is a necessary component of e-Court systems particularly in a hybrid context – to bring a seamless experience between the physical and the virtual. Deploying the right technology to achieve this objective is critical.
Solid Infrastructure: Underpinning the technology service infrastructure is solid infrastructure. Solid infrastructure is the backbone of any technology solution. These are on-ground technology infrastructures with hybrid-ready functionalities. It includes robust access and connectivity which assumes the availability of internet broadband and reliable communication technologies. Solid Technology infrastructure is critical to the legitimacy and integrity of the Dispute Resolution and legal services ecosystem.
Soft Infrastructure: In addition to solid and service infrastructure is soft technology infrastructure. Without soft technology infrastructure such as digital identities, the effort to deploy and use technologies will be severely challenged. Users of technology services must possess credentials that make it possible to verify and authenticate their identity in virtual or other settings. This is particularly critical to preserving privacy, security, and safety in the e-arena
Digital Literacy and Skills
This is essentially a recognition that investing in the right hardware and software without a deliberate and intentional effort in developing human capacity achieves very minimal results. A dispute resolution and legal services ecosystem that will harness the opportunities made available by the array of emerging technologies is one that not only has deep legal expertise in subject matter areas such as in the Maritime domain but one that understands how technology works. This transcends the recognition of technology only as an efficiency or productivity tool rather it involves an understanding of the interplay of law, society, and technology in effective justice administration and legal service delivery
It involves training that ought to be championed by our institutions of learning but will also require investments in corporate and self-development. The starting point requires a mindset shift, an embrace of a culture of innovation. Without a culture that encourages technological innovation, even the best thought-out digital transformation strategy will fail. The legal services and justice sector appears to be technologically resistant in many ways, and many times due to an irrational dismissal of technology. This ought to change and only then can a re-education process gain momentum. There are several online courses that are helpful in working towards corporate or self-re-education. These include Harvard University’s Understanding Technology Course and Open University’s Introduction to Cybersecurity. Self-learning programs ought to be implemented across an organization’s hierarchy for lasting results
The inadequacy of informed policymaking and developmental regulation, technology infrastructure, and technology-savvy leadership and workforce are the reasons for the high failure rate of digital transformation initiatives in the legal services and justice sector. This in turn breeds cynicism and further deepens the rejection of technology. Interoperability also poses a challenge where Court Management Systems deployed separately by Federal and State Judiciary organs fail to integrate seamlessly often as a result of a lack of standardization. The systems do not communicate with one another and are therefore less optimized. These shortcomings can be resolved by re-visiting the vision of the Policy at the highest levels to ensure coordination of efforts
The strong tides that have shaped technology from the first to the third industrial revolution continue to expand into the fourth industrial revolution. This article has examined our changing world and the changing maritime industry with technology as a force. The use of technology in maritime matters transcends the traditional deployment of technology in such areas as virtual hearings, Court Management or Case management, it encompasses the embrace of emerging technologies and the new legal issues emanating from a technology-accelerated world.
The maritime world is vast. It includes a network of suppliers, transporters, warehouses, distribution centres, shipping lines, logistics services providers, and more. All of these functional areas rely heavily on technology. The use of technology in handling matters in any and all of these areas will therefore require creative and innovative approaches across the legal services and administration of justice sector.
Rotimi Ogunyemi is the Managing Partner, Bayo Ogunyemi & Co. He is also the Co-Chair Digital, Nigerian Bar Asociation, and Chair, ICT Committee NBA-Section on Business Law.