Need for updated international legislation
The increased adoption of emerging technology, such as artificial intelligence and distributed ledger technology (blockchain), is creating a new digital economy and affecting international trade and dispute resolution. With these changes comes a need for new or updated international legislation. The UNCITRAL and UNIDROIT have jointly been exploring this area and some of the early reports are now available. SCC’s Lise Alm has participated in the expert sessions.
UNCITRAL has released a report of its explanatory work within the digital economy and the effect of emerging technology on international trade. The report (here) includes an overview of the conclusions and proposals for continued work in this area. The aim is to formulate concrete proposals for international harmonization or legislative guidance as next steps. Dispute resolution is one of the areas UNCITRAL proposes to examine further on the basis of this report.
The report concludes that law has a role to play in creating certainty for business in the digital economy and further that it can be used to develop the tools of the tools of the digital economy – such as data, digital assets, AI systems, smart contracts, distributed ledger technology (blockchain) and other emerging technologies. Creating a harmonized international response to these issues could pre-empt fragmented national legal responses leading to the obstruction of cross-border trade.
Accompanying the report are three addenda on taxonomy – one on AI (here), one on data transactions (here), and one on digital assets (here). The taxonomy provides a vocabulary for the relevant terms, technology and actors and lays a groundwork for legislation in this area. It is presented to the UNCITRAL Commission both a product in itself and a tool to guide decision making as to future work. It may also serve as a useful reference tool for states in developing their own policy and legal responses to the new ways of doing business using the tools of the digital economy.
The taxonomy focuses on formulating definitions, identifying the relevant actors and legal relationships involved, and highlighting the implications for existing legal regimes. The discussion raised multiple interesting issues, such as to what extent data can be seen as property, which are the relevant legal actors in applications based on distributed ledger technology, and which impact can autonomous contracts have on international trade.
The technologies mapped in this report will highly affect also international dispute resolution and arbitration in the years to come. It will be relevant to examine the international legislation to ensure it will be able to both embrace and where relevant regulate the upcoming developments in this area.