PERSPECTIVAS GLOBAIS PARA OFICIAIS DE JUSTIÇA
13 de novembro de 2019
UNA NUEVA ERA PARA LA EJECUCIÓN JUDICIAL DE MERCOSUR
13 de novembro de 2019

by Marc SCHMITZ

President of the International Union of Judicial Officers (UIHJ) – Paris

The UIHJ – High qualified judicial officer – Digitization of justice – Digital assets – World Code of Enforcement

Abstract

The challenges that the judicial officer is actually facing will deeply change his professional live. He constitutes with the judge and the lawyer uncontestably one of the three fundamental pillars of any judicial procedure. The judicial officer, by his independence, is a guarantor for legal certainty. This independence is, however, reflected in a twofold requirement: that of a high-quality education or training and that of a diversity of activities.


Today, economic development and growth of a country are based on investment, trust and credit. Speedy, efficient and secure justice is essential to promote this economic development and growth. There’s no doubt, that it’s necessary to adapt the profession of judicial officer to the economic evolution of the countries.  Financial and economic investors are requiring a well-functioning judicial system in general, and an efficient enforcement system in particular. Enforcement is not only an important pillar within the judiciary, but also for economy.

Times are changing and so is the profession of the judicial officers.  New technologies are appearing and will be considered tomorrow as indispensable for the proper functioning of justice. Modern technologies and digital evolution will accompany the judicial officer for the next years and will deeply change his profession and his daily tasks.

The draft of a Global Code of Enforcement on digital assets under the umbrella of the UIHJ could become of a capital importance, because it’s uncontested, that digital assets are representing a certain economic value. The problem that is arising in that respect is, that technology has become leading and that the law follows only later on. Law and legislative processes cannot keep pace with technologic developments. A consideration of continental and even global harmonization is crucial, particularly with regard to tracing and gaining access to digital assets which could be stored on servers anywhere, all over the world. An approach that goes beyond legal traditions is needed and also a consensus with and within the IT industry ought to be reached.

The digital evolution in the judiciary should not only be considered as a challenge, but as an opportunity,an opportunity to reinvent the profession of judicial officer and to put it in the foreground.  He can become a key player in the digitization of justice.

The International Union of Judicial Officers (UIHJ) is an international, non-governmental organization that has been created in 1952. The headquarter is established in Paris and there are 93 National Chambers or associations of judicial officers from 90 countries that are member of the UIHJ.

The UIHJ has the role to represent its members near international organisations and to ensure collaboration with national professional organisations and the implementation of international treaties.

It takes part in expertise missions near governments and international organisations and it supports everywhere where that is possible the creation of a body of judicial officer made up of high level professionals lawyers, fulfilling the functions of agent in charge of the enforcement of legal decisions, the service of judicial and extrajudicial documents and all activities compatible with their role, tending to safeguard and secure recognition of parties’ rights and aimed at expediting the judicial process or reducing the workload of the courts.

The objective of the UIHJ is to share its experience and vision of the enforcement of court decisions and of the profession of judicial officer all over the world.

Compared to other professional groups in the legal field (notaries, judges and especially lawyers), the judicial officer constitutes only a very small group.  Nevertheless, the UIHJ is actually in terms of member countries one of the biggest associations of legal professionals in the world. 

A high-level training and a diversity of activities are essential

The challenges that the judicial officer is actually facing – those that already appeared or will appear in a very soon future – like electronic service of documents, blockchains, predictive justice based on algorithms and enforcement proceedings on digital assets – will deeply change his professional live.

Nevertheless, he must stay an indispensable actor of justice who guarantees the rights of each of the litigants and keeps the balance between the rights of the debtor and those of the claimant.

Judicial officer – a profession – that is known under so many different names around the world: Gerichtsvollzieher, Huissier de justice, Sheriff Officer, Execuçao Judicial, ….,but that brings all those professionals together through the main activity which is the enforcement of court decisions. The judicial officer constitutes with the judge and the lawyer uncontestably one of the three fundamental pillars of any judicial procedure. The judicial officer, by his independence, is a guarantor for legal certainty. This independence is, however, reflected in a twofold requirement: that of a high-quality education or training and that of a diversity of activities.

A high level training of the judicial officer has always been and will always be one of the indisputable requirements demanded by the UIHJ.

High level training is the key to ensuring the sustainability of the profession of judicial officer. This high-level training does not only translate into a solid and diversified basic training, but also through continuous training that meets the expectations of the profession, expectations that are continuing to grow. It is therefore essential to continue to promote training models that have been established in the past and which have proved to be very effective: a continuous training organized together with various actors: the national chambers or professional associations of judicial officers, the UIHJ and, why not, universities. This type of training has the advantage of being individualized according to the needs met on the spot and obviously to be oriented towards the daily practice.


Besides training, the diversity of activities of the judicial officer is indeed a guarantee of his independence. The CEPEJ (European Commission for the Efficiency of Justice) guidelines are very clear in this respect: a multitude of ancillary activities can be exercised by the judicial officer. These activities can not only be exercised by the judicial officer, but he is the ideal, the privileged actor. Who else but the judicial officer could bring to the statement of facts its probative force by the surplus value of being considered a genuine document?  The same can be said of the amicable recovery of debts. The status of the judicial officer as public officer as well as his obligation to ensure the respect of the rights of all parties, provides additional guarantees to litigants. It is obvious that the judicial officer will be able to claim the exercise of additional activities only if he has a high level of training. The exercise of additional activities is not only closely related to training, but they are inseparable!


The judicial officer and the economic development

Today, economic development and growth of a country are based on investment, trust and credit. Speedy, efficient and secure justice is essential to promote this economic development and growth.

There’s no doubt, that it’s necessary to adapt the profession of judicial officer to the economic evolution of the countries.  Financial and economic investors are requiring a well-functioning judicial system in general, and an efficient enforcement system in particular.


Regarding these requirements, the judicial officer should never stop in his professional evolution and always look forward, because the world is in constant movement and changing … and he has to change and to adapt his profession to this!

Enforcement is not only an important pillar within the judiciary, but also for economy. The judicial officer needs to continue making efforts towards increasing the efficiency of enforcement. Cooperation and exploration of best practices and the use of the capacity and researches of each country for the benefit of all is important. Here cooperation is a key word. Cooperation is required, rather than inviting the wheel twice. Here there is an important role for the UIHJ to prove that the judicial officer is a reliable partner on a global level!

With his experience and as a legal professional, the enforcement officer needs to be aware of his responsibility towards the debtor, towards the creditor and towards the society.  This is not only a huge responsibility, but also a huge challenge, a challenge to guarantee a balance between the rights of the creditor and the protection of fundamental rights of the debtor.

Today, we are standing at the beginning of new challenges. Times are changing and so is the profession of the judicial officers.

The profession will have to face many upheavals that are coming up. If the use of new technologies can certainly be a powerful tool in the accomplishment of daily professional tasks, they can also, if he’s not cautious, constitute a danger for his very existence. He must, at all costs, demonstrate that HE is the enforcement professional and that it is his knowledge and foremost his human factor that allows him to position himself in a justice system that is getting digitized at the speed of light.

The digitization of justice – an opportunity for the judicial officer

If the world is changing and evolving, it’s the same regarding justice! New technologies are appearing and will be considered tomorrow as indispensable for the proper functioning of justice. This evolution which, by observing it closely, tends rather to mutate towards a revolution cannot leave the judicial officer indifferent! He must act proactively to maintain or even strengthen his position in the justice system and to ensure the sustainability of his profession.

It will not only be necessary to adapt to the needs that will arise, but also to participate actively in the creation of instruments that he will use tomorrow.  This is the reason why he can only survive as a legal professional if he adapts constantly!

Modern technologies and digital evolution will accompany the judicial officer for the next years and will deeply change his profession and his daily tasks.

For sure, managing digital change isn’t always easy, even if digital applications are already a part of nearly everyone’s day-to-day experience. Nevertheless, the judicial officer must look out for opportunities to become an active part of the digital evolution.

When the CEPEJ published in December 2018 a European Ethical Charter on the use of artificial intelligence in the judiciary, there was no doubt, that it can be concluded on this, that the artificial intelligence has become a real strategy for the Council of Europe.

It gives no sense to develop machine learning or AI applications or regulations – also in the field of civil enforcement – only in one country or on a continental level.  It has a GLOBAL dimension.  The world wide web ignores borders and offers to dishonest debtors many opportunities to escape from their obligations.  Cooperation between stakeholders on a global level are imperative to ensure tomorrows efficiency of justice.

The UIHJ has taken the decision to launch two very ambitious projects:

The one is the draft of a Global Ethical Charter on the use of AI in enforcement procedures, because in the light of ethics, we should not forget, that the human being must be in the center of the Law!  This project, that will be conducted under the umbrella of the Scientific Council of the UIHJ will – with reference to the European Ethical Charter on the use of artificial intelligence in the judiciary published by the CEPEJ – go more into detail and analyze the implication of the use of AI especially in the field of civil enforcement. There’s no doubt that AI must be implemented in a responsible manner which complies with the fundamental rights of all the litigants – including those of the debtors.

Digital assets and its economic value

Another ambitious project is in relation with the appearance of a new kind of assets: the digital assets!  The draft of a Global Code of Enforcement on digital assets – also under the umbrella of the Scientific Council of the UIHJ – could become of a capital importance.

We are living in a globalized world and it is obvious that the rise of the internet over the past 30 years introduced a new form of assets: digital assets. One of the consequences will be that enforcement of digital assets will turn into a common practice in a near future.

But so far, hardly any legislation is available with regard to a person’s digital assets while there is a need to introduce rules with regard to such digital assets on a worldwide level.

There are many assets that can be considered as digital property.  Most will probably think about crypto currencies like Bitcoins, when we are talking about digital assets. In fact, many other assets can be considered as digital ones:

  • Emails:

Written correspondence has without any doubt a certain value. Besides personal (and possible sentimental) value, it can also be of historical or economic value. Despite, so far little legislation has been introduced in that respect.

  • Social media (Facebook, Twitter, YouTube…)

For business, social media is important. Social media has become, since a number of years, one of the most effective methods to reach certain target groups. Business is able to isolate the interests of their (potential) clients and thus able to directly “contact” their target groups.  Data on consumer behavior has an economic value!

  • Digital bonds:

In this respect the recent initiative (in August 2018) of the World Bank can be mentioned. The World Bank launched bond-i (a blockchain operated new debt instrument), the world’s first bond to be created, allocated, transferred and managed through its life cycle using distributed ledger technology.

  • Online bank or investment accounts (e.g. PayPal, Revolut, Seedrs, etc …)
  • Reward points from loyalty programs

It’s uncontested, that e.g. airline miles or hotel reward points have a certain economic value, as they can be exchanged into awards (free flights, free hotel nights, …)

  • Web domains

Some very famous web domains could worth a fortune!

  • The content of online storage (iCloud, Dropbox, Google Drive)

There can be documents as well as audio or video material, which have, without any doubt, an economic value

  • Applications

For most of the people, it’s obvious that CD’s or DVD’s have an economic value. It’s uncontested, that it’s the same for downloaded applications, videos and i-tunes or Spotify music files, etc …

The conclusion is that digital assets are representing a certain economic value.

The problem that is arising in that respect is, that technology has become leading and that the law follows only later on. Law and legislative processes cannot keep pace with technologic developments.

After the rise of Bitcoin, blockchain technology attracted supporters from various professions and businesses. Blockchain technologies began to disrupt many industries by creating investable new digital assets across a range of uses, many of which are still under development or have yet to be created. Within the last few years, these globally traded assets have seen a tremendous increase in value due to their numerous benefits.

Blockchain also resulted and will result in a digitization of a huge number of assets from the traditional economy. Numerous countries already have undertaken initiatives in the field of the registration of immovables.

Yet, also commercial assets and shares, corporate and Government bonds (see the example of the World Bank), government securities and globally traded derivatives will be digitized or tokenized – enabling anyone worldwide to access them.

We can conclude on this, that there’s a need to introduce rules with regard to digital assets and its attachment.   On a world-wide level, the number of States that have regulated, or even started to deal with this matter is rare.

The digital world is cross-border

However, the question is whether such issues should be regulated on a State-level only. The digital world is cross-border. The world wide web ignores borders! For that reason, consideration of continental and even global harmonization is crucial, particularly with regard to tracing and gaining access to digital assets which could be stored on servers anywhere, all over the world. An approach that goes beyond legal traditions is needed and also a consensus with and within the IT industry ought to be reached.

The major companies of on-line services have their policy how to deal with digital assets stored on their servers in case of death or incapacity of a user. However, not all companies have such policy. Besides, the question may arise if, in case of such policy, the rights of the users are really well protected.

The International Union of Judicial Officers should play a central role in the development of digitization of justice and more precisely in the field of civil enforcement, be one of the pioneers and take a leading position by drafting position papers, recommendations and why not … extend the already existing Global Code of Enforcement of the UIHJ to the field of digitization of justice and enforcement of digital assets!

This could be for the judicial officer an unexpected opportunity to become a key player in the digitization of justice.

We are at the beginning of the process and the UIHJ is with its network and knowledge so far, the most qualified entity able to play this key role in a world of digitized enforcement. 

The important element for the UIHJ, as a professional organization is, how the profession of enforcement officer will be carried out in the future and if the legal framework permits to the enforcement officer to play the central role that he should play. If there’s a lack in the legal framework, the UIHJ should be proactive and propose through position papers or such initiatives as this Global Code of Enforcement on digital assets the creation of harmonized regulations on a world-wide level.

The digital evolution in the judiciary should not only be considered as a challenge, but as an opportunity,an opportunity to reinvent the profession of judicial officer and to put it in the foreground.

Digital change is a journey, not a destination.

Let’s travel together!