27 September 2011 Inaugural Lecture Maurits Barendrecht HiiL's Visiting Professor on the Rule of Law Presentation www.hiil.org

1. Inaugural lecture
Courts, Competition
and Innovation
Maurits Barendrecht
HiiL – Hague Visiting Professor on the Rule of Law
• Professor of Private Law at Tilburg University, TISCO
• Chairman Executive Board of Innovating Justice

2. Courts
Competition
Innovation

3. The Third Branch
Charles Louis de Secondat,
Baron de La Brède et de
Montesquieu
(Château La Brède, 18 January 1689 –
Paris, 10 February 1755)

4. The Third Party
1999
• ‘The triad, two disputants and a
dispute resolver, is a universal, if
undertheorized, phenomenon.
• It is a ‘primal technique of organizing
social authority and, therefore, of
governing. Alec Stone
Sweet,
Political
• Triads serve ‘to perpetuate the dyad, Scientist at
given changes in the preferences or Yale
identities of the two parties.
• The triadic entity responds to, and is
a crucial agent of, social change.’

5. Trilateral Governance
The third party is needed if:
• The relationship requires specific Oliver Williamson,
investments Nobel Prize
Economics 2009
• It is impossible to set precise rules
because of uncertain future
• Opportunistic behavior (stealing,
cheating and violence) is possible

6. Courts help people to decide
in their most difficult moments
• Who gets what if relationships break down
• What should happen in unexpected and
unclear situations
• Remedies when somebody cheated or used
violence

7. Problems in The Netherlands | yearly
30.000 new divorces; 100.000 terminations
of employment by employer; 700 people
killed in road traffic accident; 20.000
personal injuries in road traffic accidents;
1.000.000 unpaid debts for which
enforcement is sought; 10.000
bankruptcies; 1.700.000 conflicts related to
purchase of products or services;
15.000 asylum seekers; 180.000 building
permits
200 homicides; 170.000 victims of
violence; 150.000 instances of burglary

8. In countries torn by civil war
People reporting effects in immediate family:
• 20% someone displaced
• 15% imprisoned
• 10% tortured
• 15% home looted
• 10% deaths
Worldwide: 4 new civil wars each year
and 50.000 – 200.000 battle deaths per year
Conflict, Security and Development,
World Development Report 2011

9. It is hard to make the triangle work ...
Moet nog worden
aangeschaft

10. Their needs and their hopes …

11. Making defendants participate …

12. Supervising the interaction

13. Supervision
• Voice and participation
• Sorting out what happened (fact-finding)
• Negotiation
• Growing towards an acceptable solution
• Fit with earlier solutions (laws and case law)
• Deciding what parties cannot decide

14. Being there

15. The miracle …
By being there, third parties provide:
• Shadow of law
• Space for voice, participation, dialogue
and conciliation
• Option of participation by public
• Threat of an imposed solution and sanction

16. The art of being there …
• Prepared to intervene
• Fast … (available just in time)
• Known to work towards effective solutions
• Being predictable
• Not costly
90% of problems solved fairly by parties

17. The Void: Justice Sector Analysis
• Sarat and Grossman 1975:
Problems in Mobilization of Adjudication
• Landes and Posner 1979: Submission problem
• Botero et al. 2003 and Cabrillo et al. 2008:
Insufficient incentives on courts to offer better
services
• Carothers 2006 and Fukuyama 2011:
Rule of law and accountability very hard to
implement
• Hadfield 2008:
Regulation of legal profession blocks innovation

18. What About Courts?
• Third parties and thus courts always ermerge.
We need them in our relationships.
• Fascinating triads.
Three complex relationships at the sides
of the triangle. Provide miracles by being
there.
• Difficult to run.
Two clients each want something else.
Judges are isolated from incentives.
Have to motivate themselves and each
other.

19. Courts
Competition
Innovation

20. Consider
these
situations
…

21. ‘High workloads are
unlikely to be caused
by a worldwide
increase in conflicts
between people.’

22. Learning from competition
• Being just in time
• Focus on substantive justice not hindered
by procedural and bureaucratic issues
• Costs of access to justice
• Making settlement and plea bargaining
more fair
• A need for informational justice
• Impartiality and independence can be traded
• Local justice, in the community, seems to work
• Specialisation works

23. An entrepreneurial
judge responding to
demand for justice?
Baltasar Garzón: Investigating Drug Cartels, Marbella mayor and
Atletico Madrid owner Gil, Pinochet, ETA crimes, Franco time atrocities,
Guantanamo Bay

24. Entrepreneurial at times ……

25. Forum shopping …
• Part of the litigation game (Eisenberg and
Clermont 2002)
• Entrepreneurial judges and other 3rd parties
• Create new options for complainants
• So access to justice is improved

26. Courts and Competition
• State courts compete with other third
parties.
• Courts can learn from them. Competition
shows their strengths and their weaknesses.
• Individuals and groups seeking access to
justice vote with their feet. Forum shopping
cannot be stopped.
New third party mechanisms will be created by
social entrepreneurs to satisfy demand for
accountability. This should be welcomed.

27. Courts
Competition
Innovation

28. ‘If courts sit still, they may gradually
become less relevant.’

29. Responses to more demand
• Scenario 1: A threat?
Production targets, but no realistic option to make
services better and more affordable
• More stressed judges, more errors
• Clients wait, powerful defendants win, clients walk away
• Courts criticized, judges ask to respect courts
• Scenario 2: Signal courts are valuable?
Innovate to serve clients better at lower costs.
More willingness to pay (users, governments)
• Judges motivated
• Clients happy, more respect for courts
• Budgets more secure and more independence

30. ‘An interesting innovation making its way
through courts worldwide is known as
Hot Tubbing.’

32. No easy answers: 27 Factors have
been found that foster Innovation
• Generating Possibilities 9 factors
• Developing Innovations 8 factors
• Replicating and Scaling Up 5 factors
• Analyzing and Learning 5 factors
Experience from Public Sector Innovation, applied to
Justice Sector, combined with international literature
on Court Reform, Procedural Reform

34. Innovating Justice at local court in Nicaragua

35. A judicial facilitator:
Member of judge team, mediates,
informs, helps with documents

36. Generating possibilities
1. Vision and commitment from government
2. Focus on users, frontline staff and middle managers
3. Diversity
4. Scanning of horizons and margins: a process need
5. Developing capacity for creative thinking
6. Working backwards from outcome goals: terms of
reference
7. Creating time and space
8. Allow breaking the rules
9. Competition: the submission problem and regulation of
legal services

37. Winner Innovating Justice Awards 2011
Service of Judicial Facilitators
Pedro Vuskovic Céspedes
Coordinator of the Inter-American Program of Judicial Facilitators
Organisation of American States

39. Developing innovations
10. Appropriate selection of fruitful ideas: simplifying
procedures
11. Adequate risk management
12. Fostering innovation champions
13. Creating incubating space
14. Involving incubators and public-private partnerships
15. Introduce modeling, build prototypes
16. Better funding for early development
17. Involving end users at all stages

40. Justice Innovators
Modern Investigative Techniques | Karen Tse, Founder and CEO International Bridges to
Justice LawGuru.com | Bahman Eslamboly, President LawGuru Programa Interamericano
de Facilitadores Judiciales | Pedro Vuskovic Céspedes Coordinator of the Inter-
American Program of Judicial Facilitators Organization of American States The
eBay/PayPal Resolution Center | Colin Rule, CEO Modria.com I Paid A Bribe | Ramesh
Ramanathan, Co-founder Janaagraha Centre for Citizenship and Democracy E-
Court, the first online private court | Henriette Nakad, Founder E-Court Foundation
Weagree | Willem Wiggers, Founder Weagree B.V. The IMI Inter-Cultural Mediator
Competency Certification | Inter-Cultural Taskforce, IMI Use of Medical Experts to Secure
Release from Pretrial Detention in Russia | Dmitry Dinze, Humanitarian Action

41. Nominee Innovating Justice Awards 2011
The eBay/PayPal Resolution Center
Colin Rule
CEO Modria.com

42. Court architecture or web design?

43. Replicating and scaling up
18. Improved incentives for individuals and teams
19. Improved incentives for organisations: a sound
model for financing and monitoring courts
20. Scaling up and disruptive innovation
21. Specialise and beware of early standardisation
22. Change management

44. Analysing and learning
23. Metrics for success
24. Real time learning: change immediately if something
does not work
25. Peer and user involvement in feed-back
26. Double loop learning
27. Test from variety of perspectives

45. A methodology to measure effects and to compare
users’ experiences with third party procedures

46. What court leaders
can do …

48. • Trilateral governance in our most difficult moments
Professionals, relationship doctors, miracle providers rather
than production workers
• Allow to break rules and develop working methods
Focus on what works, what is fair, informed by rules
• Better incentives and sound system for financing
courts | Create competition and choice, terms of reference,
surveys of participants, monitoring whether interventions
work
• Create space for judges | 10% of time, 3% of budget,
recognition, partnerships
• Invite judges to an open, nurturing, knowledgeable,
competitive environment, fascinated by courts