CMS Expert Guide to Digital Litigation in Chile

In recent years, there has been important advances in the digitalisation of Chilean civil justice.

The Electronic Processing Act of 2016 was a major step in the modernisation of the administration of justice, aligning the work of the courts and users of the system with technological developments.
With the Electronic Processing Act, the so-called Virtual Judicial Office was enabled, a platform that transformed the way in which users interact with the courts of justice, allowing the filing of lawsuits and petitions electronically for all the courts of the Judicial Administration, from any place and at any time. In addition, this platform allows access to the digital files of the cases, being mandatory for judges and officials of each court, the use and registration in the digital system of all resolutions and actions that are verified in trial.

The above is an embodiment of the principle of functional equivalence of the electronic means recognised by the act. In short, the jurisdictional acts and other procedural acts subscribed by using electronic signatures are valid and must produce the same effects as if they had been carried out on paper. Overall, the use of digital and technical measures in litigation in Chile is becoming increasingly common, as more and more information is created and stored in electronic format.

In this regard, because of the state of emergency caused by the COVID-19 pandemic, the Judicial Administration has readjusted its operation, favouring telematic means for the continuation of the service, which has undoubtedly boosted the advance of digitalisation, highlighting electronic notifications, pleadings, and hearings by videoconference.

Notwithstanding the foregoing, and although it is stipulated that once the state of emergency is over face-to-face hearings would return as a rule and the undertaking of hearings via videoconference would be exceptional, we note that in practice this criterion has been flexible and open to evaluation. Many judges are proactively proposing videoconferences whereas others may have strong reservations and thus refrain from using this option. This does not exclude the parties, attorneys, and counsel, under certain circumstances, from requesting the court to attend the hearing by videoconference.

Finally, Chile has made significant progress in the digitalisation of civil justice, which has improved the system, making it more transparent and accessible. However, the impact of the implementation of technological means is an open and ongoing debate.

In Chile, there are several types of digital or technical measures available in litigation, which may include the following.

On the part of the lawyers, online consultation of digital case files, the filing of lawsuits and pleadings through the virtual judicial office are available. Related to evidence matters, electronic documents are admissible as evidence, and electronic signatures have the same legal validity as handwritten signatures. Also, audio and video recordings can be used as evidence, provided they meet certain requirements.

Other digital or technical measures available may include the use of electronic discovery for collecting, processing, reviewing, and producing information for use as evidence in legal proceedings. E-discovery is becoming increasingly important in Chile, and there are several software tools available to assist with the process. Also, the development of digital support has allowed the development of more expeditious and efficient platforms for jurisprudential analysis and statistics.
Chilean courts have been gradually integrating useful technological features. First, all proceedings and resolutions are recorded in the digital file of the cases, notifications can be carried out via email, and under certain circumstances, hearings may be held via videoconference. Regarding measures aimed at improving service and user comfort, the best examples are the user service channels set up through videoconferencing, allowing simple procedures to be carried out, such as the ratification of powers of attorney, an online follow-up of the cases that are being heard at the time by the Appeal Courts, and other features that became the new normal.

In general, the courts have shown an interest in integrating technological resources, taking into consideration the benefits they bring to the administration of justice.

In general, the use of digital tools or measures is not mandatory, but there are a few exceptions. For example, the filing of claims and all briefs must be made electronically, and only in some cases, when circumstances so require or in the case of a person authorised by the court due to lack of the necessary technological means, submissions may be filed on paper. However, the paper submissions will be digitalised and included in the electronic file immediately.

As for documentary evidence, it must also be submitted through the electronic system, or through the delivery of an electronic storage device. Even documents whose original format is not digital must be submitted electronically unless the opposing party objects. However, enforceable titles whose original format is not digital must be physically filed with the court.

In addition, the possibility of holding oral hearings by videoconference is also optional. The parties and their counsel must request that the court attend the hearing by videoconference, and in those cases where it is permitted, it is still not mandatory for the interested parties. The judge is currently required to be present in the courtroom.

As stated in the previous responses, the process of digitisation of Chilean civil justice is an ongoing process, and while the pandemic provided a boost in this matter, important debates continue to develop about the role of technology in the administration of justice.

We note that the digitisation of justice goes hand in hand with social advances and how technology generates paradigm shifts.

In general, it would be interesting to explore the idea that the administration of justice should cease to be related to the physical structure of the court or to a building, and that these should become a function where people go only to carry out face-to-face proceedings or to obtain information that is not available electronically, this is associated with greater user convenience and a decongestion of the courts. 

The period contemplated for the transitional regime for court operations during the pandemic emergency has elapsed, so besides the Electronic Processing Act and the Civil Procedure Code, there are no specific rules in place that address the use of technology in litigation.

Notwithstanding that a permanent attendance regime is currently in force, each court is empowered to develop a proposal for exceptional operations, and a hybrid and different regime may apply in each court and in the Courts of Appeal and Supreme Court, according to the proposal authorised for the respective court.

In any case, an act of Digital Transformation of the State and the first National Policy on Artificial Intelligence were recently published. Everything indicates that the efforts of the authorities are aimed at opening debates on new technologies and reaching agreements regarding their implementation at the country level. Hence, news on the regulation of digital media in civil justice is expected soon.

The Chilean Supreme Court has a Modernisation Committee, which is responsible for proposing the lines of action that should guide the development of the Judicial Administration, considering good practices, opportunities for innovation and comparative experiences. In this way, the judiciary is constantly producing and reviewing opportunities for technological innovation.

The work of the committee has been highlighted. In fact, the Ibero-American Judicial Summit recognised the leadership of the Chilean Judicial Administration in innovation and justice by incorporating robotics, artificial intelligence and the geo-referencing of proceedings.

Currently, litigants are attentive to the next step in the matter. The pandemic created a great impulse in the implementation of technology in our justice system, but it remains to be seen whether this will be a trend or will have a transitory effect. The debate is still open. 

Beyond the general personal data protection statute and the national artificial intelligence policy, there are currently no special rules governing the use of AI in litigation. However, it is an area under development by the Chilean authorities, from the government, the Congress and the Supreme Court of Justice. It will be interesting to observe the different initiatives that arise after the first steps that have been taken.

The massive processing of personal data contained in the electronic processing system of the Judicial Administration is prohibited without prior authorisation. Any infringement committed by public and private entities to the provisions of this paragraph will be punished in accordance with the Protection of Personal Data Act. 

The increasing reliance on electronic information and the use of digital tools in the legal process has created new avenues for potential risks.

These risks may be found in easy access to online information and the presence of legal forms (e.g. contracts), which could encourage the habit of dispensing with professional legal advice. This recurrent practice could increase risks associated with deficiencies in the protection of a business’s own interest, lack of compliance, or possible prosecution, particularly when it comes to specific matters where the intervention of experts is necessary and essential.

On the other hand, an electronic system allows the filing of mass claims and for the acceleration of processes. Thus, if companies do not have their own or external system for monitoring cases to which they are a party, their exposure to risk and costs are greater. Therefore, the implementation of digital case monitoring systems translates into benefits for the company. It reduces the possibility of a company not knowing the status of processes in which it is a party, and strengthens the company's ability to mount a defence. 

To date, there are several online resources available to help individuals access legal information and resources, including the Chilean Ministry of Justice website, which provides information on legal aid, legal services, and the legal system in the country.

There has not been a development of more sophisticated technologies, such as a legal chatbot coming from the judiciary or any other authority. Such development has been limited to the private sector where pilot plans have been developed, but are still in the preliminary stages.

What does stand out is the ongoing online dispute resolution (ODR) platforms developed by the Arbitration and Mediation Centre of the Chamber of Commerce. The concept of ODR refers to systems that allow for the adequate resolution of all types of conflicts in digital environments. The Arbitration and Mediation Centre manages appropriate online dispute resolution mechanisms between companies and between companies and consumers or users, being a good example of progress in this regard.