Every day, new tools that use artificial intelligence (AI) are being developed to help people in their daily tasks. From the production of drawings, logos, texts, and programming codes, among others, AI is here to stay, it is part of our everyday life and it will be more and more present in our lives, being part of our routine just like SIRI, ALEXA or GOOGLE ASSISTANT.
We can see that Silicon Valley’s technological giants (Google, Amazon and Microsoft) are investing hundreds of millions of dollars in the development of AI with the aim of making life easier for their users. Such is the case of Google, which has just bought Anthropic for more than 400 million dollars [1]. Without a doubt, the most striking case is that of Microsoft, the leading company in the sale of software worldwide that seeks to compete with the aforementioned companies and be at the forefront in the development of artificial intelligence, implementing it in their service packages with the acquisition of Open AI, the company that developed CHAT GPT, and it is estimated that their long-term investment will be around 10,000 million dollars [2].
Likewise, Microsoft made an announcement on February 7, 2023, indicating that they will be implementing CHAT GPT in their BING search engine and in their Microsoft Edge search engine [3] in order to enhance their applications and optimize the search results.
However, the reader may ask, what does this have to do with the administration of justice in Ecuador? Well, although it may not seem so, we are getting closer and closer to making such tools a part of the administration of justice, which would certainly lighten the procedural burden of judicial officials and, above all, would mean that “procedural speed” would no longer be a myth.
The first known case is that of Juan Manuel Padilla García, Judge of Labour Court No. 1 of the Cartagena Circuit (Colombia), who used the CHAT GPT tool as a support tool.
The aforementioned Judge used IA to review the jurisprudential background and the laws applicable to a case with the aim of issuing a sentence in a process of Protection of Fundamental Rights (equivalent to our Action for Protection) in the case of a minor with autism spectrum disorder who stated that he “lacked the economic resources to pay the costs of prescription charges, co-payments, and transportation costs”, so he sued the company Salud Total EPS who refused to cover these items. [4]
Although the sentence was favorable for the child and the insurer will have to cover the costs for his adequate treatment, the judge used the CHAT GPT tool to collect and process jurisprudential background, which has caused some controversy in Colombia.
Judge Padilla interacted with the IA by asking certain questions and the answers were transcribed in the sentence. For example, the Judge asked:
“¿Is the autistic minor exonerated from paying prescription charges in his therapies?
The answer of the IA application was:
“Yes, that is correct. According to the regulations in Colombia, minors with a diagnosis of autism are exonerated from paying prescription charges for their therapies. This benefit is regulated by Law 1753 of 2015 and applies to all institutions providing public or private health services that receive resources from the general healthcare social security system.”
Although there have been diverse repercussions and purists have been quick to criticize this tool and other types of AI because they are still in their development stage and there may be errors and inaccuracies, it is no less true that their improvement is progressing by leaps and bounds. Therefore, it is essential to consider the implementation of these tools in the short term, as well as others that have already been developed, in order to facilitate the work of law enforcement officials.
For example, let us imagine that a judicial officer has to prepare dozens of judgments and orders every day. In the future and with the use of AI -such as CHAT GPT- duly “fed” with information and processes, the official could request the tool to draft, not dozens, but hundreds of documents, which could reduce the time of substantiation of the judicial process and, above all, justice could incorporate an expeditious solution for the benefit of users and citizens in general.
Although Ecuador currently has the E-SATJE 2020 system, which can be used to enter pleadings, view electronic judicial dockets and view some of the files that are part of the process, the digital transformation in the country has been slow despite the enactment of some laws and reforms -especially the COGEP-. Therefore, it is imperative that those responsible for the administration of justice in the country find solutions to ensure its adequate modernization.
Technology is here to stay. The world of law and especially the administration of justice cannot simply look to the side and continue with 19th-century practices (such as continuing to stitch together files), while solutions such as blockchain and AI can now be employed.
In a State function with a budget of more than three hundred million dollars [5], where about 92% of this money is allocated to current expenses (salaries) [6], it is imperative to implement all possible means to reduce costs, increase efficiency, and, above all, to ensure that people who rely on the justice system can be recompensed with access to a truly efficient and expeditious justice.
The Judiciary Council should consider incorporating AI as a solution to some of the multiple problems afflicting the judicial system; however, and in light of the facts, the implementation of solutions such as this and other technological tools cannot and should not wait much longer.
[1] https://www.elespanol.com/elandroidelibre/noticias-y-novedades/20230206/ia-google-invierte-millones-dolares-proximo-chatgpt/739426309_0.html
[2] https://elpais.com/economia/2023-01-23/microsoft-invertira-100000-millones-en-la-empresa-de-chatgpt-para-impulsar-la-inteligencia-artificial.html
[3] https://blogs.microsoft.com/blog/2023/02/07/reinventing-search-with-a-new-ai-powered-microsoft-bing-and-edge-your-copilot-for-the-web/
[4] https://forogpp.files.wordpress.com/2023/01/sentencia-tutela-segunda-instancia-rad.-13001410500420220045901.pdf
[5] https://www.finanzas.gob.ec/wp-content/uploads/downloads/2022/10/26-CN_Por-Entidad-RN.pdf
[6] https://www.funcionjudicial.gob.ec/www/pdf/resoluciones/2022/233-2022.pdf
© TobarZVS
This article contains information of general interest and does not constitute legal advice about specific matters. Any particular analysis will require the Firm’s legal advice.
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On January 15, 1986, Ecuador signed the International Center of Settlement of Investment Disputes (ICSID) Convention which offers a neutral forum for international dispute resolution. During the 90´s, Ecuador followed the general trend adopted by many other South American countries of signing Bilateral Investment Treaties (BITs) with the intention of attracting foreign investment. On April 19, 2001, Ecuador ratified the convention during former President Gustavo Noboa Bejarano´s administration. Several years later, Ecuador became one of the most sued countries under the ICSID convention.
Since the beginning of President Rafael Correa administration (2007-2017) he manifested his hostility towards the ICSID convention: “withdrawing from ICSID is necessary for the liberation of our countries because [ICSID] signifies colonialism, slavery with respect to transnationals (…) I cannot tolerate this”[1], the former President said in public interviews.
Correa´s feud against ICSID basically compromised 4 steps: i) In 2008, Ecuador denounced over a third of its BITs; ii) Later in 2008, the new Constitution of Ecuador came into force and it contained a confusing provision which seemed to prohibit the country from submitting disputes to international arbitral tribunals; iii) On July 2, 2009, President Correa issued Executive Decree Nº 1823 denouncing the ICSID Convention and declared its termination; iv) A couple of years later, Ecuador denounced the termination of all of its BITs. It is worth mentioning that most of the BITs contained survival clauses, so the investors were not prevented from commencing ICSID arbitrations against Ecuador.
One of the main accusations that Correa used for terminating the BITs is that they were “unconstitutional” pursuant article 422. However, the Constitution forbids entering intro treaties or international instruments that submit jurisdiction to international arbitration tribunals in contractual or commercial disputes and investment arbitration is a complete different creature. Unfortunately, the Constitutional Court did not consider that investment arbitration is different from commercial (or contractual) arbitration and declared that the BITs were unconstitutional; The unconstitutionality argument was seconded by the National Assembly and a special committee (CAITISA) in charge of reviewing the denunciations which reached to the same conclusion.
In the 2021 presidential elections, Guillermo Lasso, a former banker, was elected as the President of Ecuador. President Lasso has vowed to attract foreign investment and break away from the leftist policies adopted during Correa´s administration. It came as no surprise that one of the first things that President Lasso would do is try to find ways for regaining the trust of foreign investors after years of political instability. On June 21, 2021, the State signed the ICSID convention and now the next step is ratification.
There is an ongoing discussion on whether the ICSID convention needs to be previously approved by the National Assembly in accordance to article 419 of Constitution. Pursuant to article 419, the ratification of international treaties will require the approval of the National Assembly in the following cases: 1) They refer to territorial or boundaries matters; ii) They establish political or military alliances; iii) They contain the commitment to issue, modify or repeal a law; iv) they refer to rights guaranteed in the Constitution; v) They compromise the State´s economic policy to international financial institutions or international companies; vi) compromise the country to integration and trade agreements; vii) They give competences of internal legal order to an international or supranational organization and; viii) They compromise the country´s natural resources, water, biodiversity, etc. In my view, the ICSID does not require the approval of the National Assembly as it does not fall in any of the categories previously mentioned; Its very nature is to offer a neutral forum to solve international disputes.
Another relevant aspect is that Ecuador will consent to submit specific disputes to that mechanism on separate instruments to be signed with foreign investors. For instance, Ecuador could be part of the ICSID convention and not have a BIT containing a standing offer to arbitrate under said convention; Hence, being part of ICSID does not equals to automatic consent to arbitrate all disputes under that forum.
On June 21, 2021, President Lasso´s General Legal Secretary sent a communication to the Constitutional Court asking them to clarify on whether ICSID needs the prior approval by the National Assembly. In this document, the General Legal Secretary clearly explained that due to ICSID´s nature it does not require the National Assembly prior approval in accordance with article 419. In addition, he said the President has the legal capacity to sign and ratify international treaties according to article 418: “the President of the Republic is responsible for signing and ratifying treaties and other international instruments. The President will immediately inform the National Assembly of all the treaties that it sings, with a precise indication of their nature cand content (…)”. Currently, the Constitutional Court has not issued a decision on this.
The signature of the ICSID convention shows the current administration´s compromise of protecting foreign investment and attracting capital to the economy. In my view, this is a positive and important step taken by President Lasso because it allows Ecuador to enter into important new agreements with the international community, which will contribute to the country´s economic growth and result in the generation of jobs for its citizens and development of important projects for their well-being.
[1] https://www.iisd.org/itn/en/2009/06/05/ecuador-continues-exit-from-icsid/
By ZVS Tobar in Featured , NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
On June 30, 2021, the Constitutional Court put an end to the discussion on weather ICSID required prior legislative approval pursuant to article 419 of the Constitution. The Court concluded that ICSID does not require such an approval.
On January 21, 2021, Ecuador signed ICSID and now the next step is ratification. In the past days, an internal discussion took place on whether ICSID required prior legislative approval. Pursuant to article 419, the ratification of international treaties will require the approval of the National Assembly in the following cases: 1) They refer to territorial or boundaries matters; ii) They establish political or military alliances; iii) They contain the commitment to enact, modify or repeal a law; iv) they refer to rights guaranteed in the Constitution; v) They compromise the State´s economic policy to international financial institutions or international companies; vi) compromise the country to integration and trade agreements; vii) They confer competences of internal legal order to an international or supranational organization and; viii) They compromise the country´s natural resources, water, biodiversity, etc.
The President´s position was that the ratification of ICSID did not require legislative approval. On June 21, 2021, President Lasso´s General Legal Secretary sent a communication to the Constitutional Court asking them to clarify on whether ICSID needs the prior approval by the National Assembly.
The Constitutional Court explained that ICSID does not refer to territorial or boundary matters, it does not establish political or military alliances, it does not enact, modify or repeal a law, it does not refer to rights guaranteed in the Constitution, comprise the State´s economic policy or its natural heritage.
Perhaps two of the most controversial aspects were deciding on whether ICSID compromises the country to integration and trade agreements or confers competences of internal legal order to an international or supranational organization. Regarding the first aspect, the Court mentioned that although ICSID´s preamble talks about the “necessity of international cooperation for economic development” this does not imply that an obligation of commerce or integration is being acquired. The Court went on and said that the sole mention of commerce or integration does not mean that this treaty requires legislative approval.
Regarding the conferring of competences of internal legal order to an international or supranational organization, the Court explained that ICSID offers the possibility, not the obligation, for its member States to arbitrate. Arbitration is consensual; thus Ecuador would have to consent to arbitrate an investment dispute on a separate instrument such as a BIT, bilateral investment contract or investment protection law. In other words, signing ICSID does not mean acquiring an obligation to arbitrate all investment disputes. The Court also mentioned that in case 34-19-IT they concluded that “the resolution of disputes between States is not a competence of internal order”, hence resorting to ICSID does not imply conferring competence of internal legal order to international organizations.
It is worth mentioning that it was not a unanimous vote: 6 votes in favor (Judges Salazar, Andrade, Nuques, Corral, Salgado, Lozada) two dissenting votes (Judges Herrería y Ávila) and one against (Judge Grijalva). On their dissenting opinions, Judges Herrería y Ávila explained that the National Assembly should have been participated in the dialogue process of such an important topic. They also mentioned that there is a constitutional prohibition to submit disputes to international arbitral tribunals (art. 422). This is not true, because article 422 refers to commercial or contractual disputes and investment arbitration is a whole different creature. Hence ICSID is not incompatible with the constitution.
Conclusion
The Court´s decision is positive as ICSID did not require prior legislative approval for its ratification. Returning to ICSID will bring many benefits for the county and will attract foreign investment, which is one of the key aspects for the new government.
By Vela Óscar in Featured , NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
The latest edition of Leaders League 2021 includes the firm as recommended and highly recommended in the areas of Arbitration, Competition & Antitrust, M&A and Corporate Tax for Ecuador. Team members are also recognized in their respective areas. Oscar Vela and Andres Larrea for Arbitration; Bernardo Tobar and Cesar Zumarraga for M&A; and Alvaro Sevilla and Bernardo Tobar for Competition & Antitrust.
Visit the full rankings in Leaders League.
By ZVS Tobar in ANTITRUST & COMPETITION , CORPORATE, M&A , Featured , NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins , TAX CONSULTANCY
Tobar ZVS announces the adoption of Kira, the AI-driven document analysis software that is now part of Litera’s Workflow product family, as part of an ongoing commitment to move its product offering from traditional service delivery models into a radically new client experience model. Tobar ZVS is the first law firm in Ecuador to adopt Kira.
“We have already automated and digitalize many components of our legal products and client experience, including workflows, project management, contract drafting, data management, and collaboration tools, but were persuaded that AI not only brings about significant efficiencies but enables outcomes that would not be possible or practical to the human eye alone.” said Bernardo Tobar, Managing Partner at Tobar ZVS. “We implemented AI for English language documents in 2021 and after reading AI For Lawyers, which was co-authored by Kira’s co-founders, we decided to test Kira, which can be trained in Spanish and has the added advantage of integrating with our digital operations platform, and have been impressed with how Kira has allowed us to solve specific client needs in a way that wouldn’t be possible through conventional methods, making our Firm’s value proposition unique”, added Mr. Tobar.
Kira will be used as part of an ongoing commitment to deliver innovative and results-oriented legal solutions to clients who seek counsel on M&A, Data Protection and Privacy Assessments, Compliance, Real Estate matters, Contract and Clause Bank Management, as well as for market intelligence.
“Tobar ZVS’ commitment to Kira will help the firm execute on its vision of innovating integral solutions that add value to its clients. By integrating Kira into its transactional practice, Tobar ZVS will be able to devote more time towards covering critical angles of risk,” said Kennan Samman, Vice President of Global Product Sales at Litera. “We look forward to seeing what the firm accomplishes during its journey towards leveraging advanced tools in legal practice.”
Tobar ZVS’ service delivery approach and business model are underpinned by a cutting-edge digital platform, which integrates workflow automation, legal project management, contract automation, artificial intelligence, a robust document management system, AES-256 compliant, and banking grade information security features.
About Litera
Litera has been at the forefront of legal technology for 25+ years. As a global leader in workflow, AI-powered due diligence review and analysis, collaboration, and data management solutions, Litera provides legal teams with streamlined technology for creating, analyzing, and managing their documents, deals, cases, and data. Litera’s solutions help law firms and corporate legal teams worldwide work more efficiently, accurately, and competitively to provide their clients with usable and actionable information. For more information about Litera, visit litera.com.
By ZVS Tobar in DATA PROTECTION , Featured , News and Bulletins
