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Bottlenecks and gaps in current legislation?

The United Nations Commission on International Trade Law (UNCITRAL) recently presented a report on the new digital economy and emerging technology. SCC Head of Business Development Lise Alm, with extensive experience from the cross-section of innovation and digitalization, was part of the expert group which drafted the report. Below she elaborates on some of the issues discussed in the report and by UNCITRAL on its 53rd Commission Session.

• Can robots solve disputes? Should they? Are they already? Are disputes related to high technology a breed of their own?
• Is data a tradable asset, like a house or a horse? If so, who owns it? The potential individuals referenced in the data, or the persons collecting and making sense of the data? Or both at the same time? If it’s not an asset, how do we handle the immense value of it? It is after all the new black gold of trade.

These are some of many questions raised for legislators and policy makers by the new digital economy.

In order to promote emerging technology while protecting certain core legal values and principles, we need to evaluate current legislation to find potential bottlenecks or gaps. First step of this is to define the terminology. What is meant by data, artificial intelligence, distributed ledger technology, digital platforms? What is the relevant taxonomy or terminology to be used to make sure we hit the right target when we legislate?

The digital economy has been one of the focus points of UNCITRAL’s work over the last year. This has included an expert group where I had the opportunity to contribute read more here laying some ground work on the taxonomy of this new digital world. On September 15, our report was presented to the UNCITRAL Commission together with a request for a renewed mandate to continue working on these matters. One of the areas specifically pointed out for further work is dispute resolution.

Read the report here 

UNCITRAL highlights two areas of interest when it comes to the intersection of dispute resolution and emerging technology. Using AI and automated systems to handle complains and resolve disputes, and the use of existing dispute resolution processes for disputes arising out of transactions in the digital economy, including within high-tech industries.

When it comes to the first aspect, UNCITRAL notes:

“Nearly all legal systems presuppose human analysis and judgment as an essential element of recognized dispute settlement mechanisms such as mediation and arbitration. The use of AI and automated systems thus raises a number of issues relating to the application of existing laws, including the UNCITRAL texts on arbitration and mediation, such as the [NY Convention], the [Model Law] and the [Singapore Convention]. Those issues include whether the parties can validly refer terms generated by an AI system to settlement and whether a corresponding agreement would be enforced as an arbitral award or settlement agreement.” 

I addressed the complexity of some of these issues before the UNCITRAL Commission earlier this summer, in an intervention where I focused on the need for on overview of the frameworks of dispute resolution against the backdrop of AI.  (starting at 1 hr 24m) 

From my horizon, the dispute resolution community needs to focus on three main areas ahead; 

In the discussion on disputes arising from the new technology, one issue raised was wether these disputes are so specific that they need separate rules. The need for speed, highly specialised expertise and the ability to handled vast, sometimes digital evidence in a short time frame were some of the elements specifically mentioned. 

These are indeed highly relevant and challenging issues. However, it may be questioned whether this wish list is unique to high tech disputes. The SCC and other institutions have previously established separate industry specific rules and processes, but in the experience of the SCC, these have come very close to the general rules and over time the general rules have prevailed also where industry specific rules exist. It will be interesting to follow the development in this area.  

Even if I'm not convinced high tech disputes will require a specific toolbox, I'm convinced that new technology will challenge the frameworks we have today.
Legislators have an important role in both promoting and regulating some of the upcoming technologies ahead, for us all to be able to harvest as much of the benefits and suffer as little of the drawbacks as possible. Therefore, I was encouraged to hear that most member states expressed their sup port for UNCITRAL's continued work in this area. The report is a starting point for the important effort to reach global consensus on terminology, which facilitates the evolution of a global digital economy. It will exciting to follow the development going forward. 

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