The Legal Consequences Arising from Technical Malfunction in the Management of Remote Civil Proceedings: A Comparative Study

Abstract

Remote litigation raises several legal and procedural issues, particularly in jurisdictions that regard it as an appropriate emergency option when in-person proceedings cannot be conducted. Some of these jurisdictions remain legislatively lagging behind technological developments, particularly with regard to technical matters, in addition to the lack of adequate legal and procedural solutions to address certain issues arising in remote litigation. Technical failure is one of the challenges confronting remote litigation, raising the question of how such failure should be addressed, whether the technical malfunction is genuine or merely alleged for the purpose of delaying and prolonging the proceedings. This study seeks to identify the principal circumstances that may constitute a technical failure and to examine the means by which the judiciary may address them. The significance of this research lies in the fact that the Iraqi Code of Civil Procedure No. 83 of 1969 is a paper-based law, and everything related to it is based on paper-based deliberations. In other words, the environment in which this law is based is paper-based, not electronic. The provision for addressing and managing electronic malfunctions essentially follows what the Iraqi legislator did not stipulate within the provisions of the Iraqi Code of Civil Procedure, such as holding remote court sessions. Therefore, how can a technical malfunction be addressed and managed when this cause could be considered an additional reason for invalidation or potential postponement? This has created a legislative gap that the Iraqi legislator should have addressed by explicitly stipulating this provision to avoid any disruption to the judicial process. In this methodology, we adopted two approaches: the analytical approach, relying on an analysis of the provisions of the amended Iraqi Code of Civil Procedure No. 83 of 1969 concerning the circumstances that can lead to the postponement of proceedings and the potential for invalidation due to technical malfunctions; and the comparative approach, following the mechanisms adopted by other legal systems to address technical malfunctions, such as Moroccan law and Emirati legislation.