Материал: Том 1 №1
Digital Law Journal.Vol.1, No.1, 2020,p.12–23
Max Gutbrod / Digital Transformation in Economy and Law
Document Management
Document management programs are starting to expand into activities to be undertaken on the basisofthosedocuments.Theynow,forinstance,includeremindersatthetimewherepotentiallya terminationnoticehastobeissued.
HR
Of course, it is not possible to predict where the revolution new technology is making possible will end. However, taking into account that artificial intelligence can replicate creative activity (for instancecompose,perform,orbeactiveinotherartisticareas),thecriticismofautomationinhiring interviews,namelythatsoftskillsarenotincluded12,doesseemshortsighted.
Technical Aid in Solving Legal Cases
Ifthearchitectureofasystemallowsthoseseekinglegalaidtomakethechoicesthemselves,and thereforesubmittheirclaimstocounterpartiesorcourts,workfromlawyerstoestablishfactscould be replaced by this system. Interestingly, the building of this architecture requires lawyers to help inconceptualizing.
Transparency through Statistics?
Technically, for quite some time it has been easy to assemble data on the success of litigation and to make statistics on this basis, and the increased ability to process data should allow for making better use of this ability by, for instance, obtaining case data directly from courts or clients. The reference for such statistics could be entire law firms or from lawyers, and also the type of matter, for instance consumer litigation. Of course, the immediate conclusion would be that the firm or lawyer with the smallest percentage of lost cases would seem preferable to clients, of course. Evidently, such a conclusion would be misleading in that a firm or, respectively, the lawyer taking more cases that are difficult to win would look worse even if the firm or the lawyer had displayed outstanding skillsatthelitigation.
Those rather simplistic examples demonstrate that it should not be difficult to conceptualize different, more reliable approaches, and the success of such approaches would not so much depend on technical means or programming but rather on an independent assessment that is only focused on getting better results. For instance, an evaluation of the odds of success by an independent person beforealawfirmischosen,orevaluationbyclaimantortypeofclaimant.
The Challenge of Adapting the Procedure
An example of how difficult it is to use the benefits that technology brings is the calendars that practically everybody nowadays keeps in a computerised form. Normally, the functionality allows those calendars be opened to others. As a consequence, meetings can easily be scheduled not by askingpeoplebutbyassessingtheiravailabilitythroughtheircalendar.
Calendars have been open in this sense for many years. However, frequently, when trying to schedule meetings in this manner, one hears that calendars are not kept up to date, that even if there is no appointment the person having access to the calendar is not entitled to schedule meetings, and that the calendars are not accessible to those not in the system of the organisation. Also, there do not seem to be any tools to share availability with people outside the organisation. Doing
12Schütz, M. (2020, March 1). Der Hightech-Irrtum in den Personalabteilungen [The High-Tech fallacy in HR]. Spektrum.de. https://www.spektrum.de/kolumne/der-hightech-irrtum-in-den-personalabteilungen/1708144
20 ESSAYS
Цифровоеправо.Том1, №1, 2020, с.12–23 М.Гутброд/Цифроваятрансформациявэкономикеиправе
so, of course, would require that internal meetings are kept confidential from the outside, and variouslevelsofconfidentialitywouldhelpinseamlessscheduling.
Perhaps implementation of scheduling procedures will be furthered by the current focus on remoteworkandthedifficultytomakea“quickcall”.
The Potential in Technology to Focus on Internal procedures
Technology could lead to disruptions by facilitating and ensuring compliance with procedures. I willexemplifythisthroughtheexampleofthetreatmentofalong-termillnessthatrequiresrelatively simple,butconstant,medicationandexamination.Insteadofthetypicalpaperprescriptions,anentry into an app could be made, which could be easily accessible to the patient, and where the patient could note not just which actions were taken to comply with the prescriptions, but also any questions that the patient may have, and any changes in treatment that may occur. This example also illustrates how much the transparency of the doctors could be increased, and how much easier it could become to establishwhetheradoctorhasreviewedtheinformationtheyreceivedinatimelymanner.
Summary
A common theme of all the above examples is that success depends on the ease of implementation and the less the user is required to change their behaviour. The more technology focuses on a key part of activity and seamlessly takes it to the end, the bigger the disruptive effect could be to the procedures; the less they are interrupted, and the more the project starts with an action that alreadyispartofaprocessandcontinuesthisprocess,thebiggerthelikelihooditwillbesuccessful intheshortterm.
Utopia in Education and Legal Science
In order to think from the opposite and conceptualize how to change patterns we have been acquainted with for many years, I will expand into education and legal science:
Education
The increase of the ability to process data, made possible by digitalization, could increase the efficiency of courses towards a certain result. Online programs could be devised to measure related abilities individually. This could be used to teach drafting of contracts in a detailed, sophisticated manner. Switching some of the traditionally theoryand case-focused-learning to more or less sophisticated drafting would seem appropriate, as most of the lawyers in practice are indeed busy with drafting, and only a smaller proportion of them decides cases or works in theoretical contexts. As a reminder, for instance, German legal training is very closely structured to train judges, and in particulartotransmitalltheknowledgeavailablerequiredtodeterminedecisionsincases.
Obviously, when drafting, knowledge of the law is needed to avoid clauses that are not valid as they infringe binding law, to avoid simple duplication of the law but also to assess what the clause achievesincomparisontowhatthelawwouldhavemandated,andtouseterminology.
Finding the clauses appropriate for teaching requires conceptualizing courses anew. This is be- cause,typically,inthemindsofpractitioners,clauses—suchaspricingclausesinM&Aagreements— are very special, so that the time required to define the situation and make it understandable to students makes is too long to use them for training, and more simple parts of purchase and sales agreements would probably be preferable as they would allow for, for instance, explaining product
ЭССЕ 21
Digital Law Journal.Vol.1, No.1, 2020,p.12–23
Max Gutbrod / Digital Transformation in Economy and Law
liability issues. As another example, dealing with corporate law, the financing of a company can be discussed on the basis of a joint venture agreement, and could be used to explain legal regulation of capital contribution and prohibition of their return, alongside the criteria for taking the decision onthemanneroffinancing.
Clearly, developing courses anew would be sophisticated work, as there are no precedents, and examplesusedinspecializedtrainingwouldneedtobesimplifiedandafulldiscussionoflegislation wouldbeneededtobetiedtothediscussionoftheclauses.
Students’ deficiencies could be evaluated individually to overcome difficulties they may have in understanding drafting examples, and, on the basis of a differentiated data set which can be adapted to experience, students’ deficiencies would be corrected on an ongoing basis, and specific coursesforsuchdeficiencieswouldneedtobedeveloped.
Accordingly, grading would not so much be a reflection of a relatively simplistically average of select abilities as it is today. Rather, grading would be a reflection of needs in training, and — concerning the final grade — a reflection of specific abilities useful for a future employer. This grading could, for instance, give an idea of common sense when addressing legal questions, as contrasted to theattentiontodetailindraftingandtheabilitytosolvedifficultlegalquestions.
Legal Science
The level of legal science largely depends on the level of detail that legal writing summarizes.
With technology, by referring to excerpts of decisions and writings, such legal writing could much moreeasilyassembleaconcisepictureofquestionswithoutrequiringtheamountofworkthatwas necessary earlier in order to assemble material, whereas a legal scientist will traditionally identify a problemandsearchforthematerialthatrelatestothisproblem.Germancommentariesarecomparatively voluminous13 and are frequently updated every year. With technology, when a court decision or an article is being read, the place where this writing can be used could be determined, and the text thereforetechnologicallyprepared.TechnologycouldthereforehelptogetRussianlegalsciencetoa levelthat,despitetheroleGarantandConsultanthasbeenhaving,ithasnotachieved.
Specific Obstacles
It is also easy to see what the hurdles for such developments are: those developments require substantialpreparatoryworkandthechangingofstructures.Forinstance,courseswouldneedtobe developed which focus on dealing with deficiencies as opposed to simply repeating and updating whathasbeenseenasstateoftheartfordecadesorevencenturies.
Substantial effort — both in terms of programming and summarizing the existing material — wouldhavetobetakenforscience.
Staffing of Digitalization
Frequently, it is argued that digital competency should exist at the highest level in companies, andthat(attheveryleast)amemberoftheboardshouldbeinchargeofinnovation.However,such a member of the board, if it is not integrated into the structure, is likely to take decisions which are unlikelytobesuccessfullyimplemented.
13The wellused commentary to the German Civil Code Palandt, which is updated annually, in its 65th edition in 2006, had almost 2,900 closelyprintedpagesandatextshortenedbyabbreviations.
22 ESSAYS
Цифровоеправо.Том1, №1, 2020, с.12–23 М.Гутброд/Цифроваятрансформациявэкономикеиправе
If the aforementioned attention by the leadership is not available, frequently, people who are enthusiasts are assigned to digitalization, and the hope is that they convince the organization necessary to keep up with the development of technology. Frequently in such a case, before they are successful in convincing others, the enthusiasts become disappointed and leave for start-ups or betterpaidjobs.
Summary
Accordingly, I do believe that almost every procedure can be substantially changed by technology, and substantial efficiencies and wealth can be created by doing so. When progressing, the less sophisticated activities are likely to be the first to be digitalized. In this process, lawyers will not be replaced, but rather will act as participants in the change and managers of it, as well as those that provide the substance for it. Gradual change may, at some time, turn into a speedy one. To use an actual example: the ability to conduct shareholders meetings online is of huge help and may gain substantial traction if meetings are suddenly forbidden, as has happened in the context of the coronaviruscrisis.Intheend,thehopeisthatwecanallbetterfocusonworthwhileissues.
Information about the author:
MaxGutbrod—Dr.jur.,partner,MoscowBranchofBakerMcKenzie,Moscow,Russia. max.gutbrod@bakermckenzie.com
Сведенияобавторе:
ГутбродМ. — Dr. jur., партнер, московский офисмеждународной юридической фирмы Baker McKenzie, Москва,Россия.
max.gutbrod@bakermckenzie.com
ЭССЕ 23
https://doi.org/10.38044/DLJ-2020-1-1-24-38 |
|
4.0 |
|
|
|
Articles
Transformation of Law
in the Context of Digitalization:
defining the correct priorities
Abstract
ElinaL.Sidorenko1,*, Pierre von Arx2
1MoscowStateInstituteofInternationalRelations(MGIMO)
76,ave.Vernadsky,Moscow,119454, Russia
2SwissFederalInstituteofTechnologyinZurich,TheOSCEProgramme OfficeinBishkek
6, Ryskulovastr.,Bishkek,720001, Kyrgyzstan
The subject under analysis is the peculiarities around the legal regulation of digital technologies and products arising from digital technologies. The choice of this topic was predetermined by the active development of digital services and digital financial assets, and the necessity to adapt modern legislation to the needs of the digitaleconomy.Despitethefactthatseveralstrategiesforthedevelopmentofdigitallawarebeingworkedout at the level of international organizations, neither in theory nor in practice is there a single understanding of thelegalnatureofdigitaltechnologiesandthefoundationsoftheirlegalregulation.
From this perspective, the purpose of this article is to understand the system and the main categories of the digital economy through the prism of fundamental legal institutions, based both on the traditional principles of scientificanalysisandontheresultssteamingfromapplieddataprocessingmethods.
Usingmethodsoftheoreticalmodeling,idealization,andtheoreticalexperiments,theauthorsconsiderthecategories of legal personality, security, and tort of digital technologies and products, compare them with similar legal institutions, and determine possible options for integrating new legal categories into traditional rule of lawoncontracts,liability,andtheprotectionofintellectualrights.
As a result of the study, the authors have assembled their vision of those benchmarks, on which international strategies for regulating the digital economy should be built. The authors proceed from the fact that the adaptive capabilities of traditional law are very limited in relation to digital technologies; furthermore, in relation to manyofthem,qualitativelynewlegalmodelsshouldbedeveloped.Thearticlepresentstheresultsofareview of the main legal parameters of digital technologies. Formulations of legal personality and protection are proposed,definitionsofdigitaltechnologyproductsincivilandcopyrightlaw areformulated.
The conclusion reached concerns the inconsistency of approaches to assessing the legal nature of digital objects, and the insufficient consideration of the technical aspects of digital technologies, as well as the need to develop — at the international level — a unified legal strategy for civil and intellectual law regarding digital technologies. This study underlines, among the priority tasks and directions, the issues of legal personality of digital technologies, and the essential mechanisms for the protection of products using digital technologies. Theconclusionsformulatedinthearticlehaveimportantpracticalandmethodologicalsignificance,andcanbe
takenintoaccountwhenreformingthecurrentlegislation.
Keywords
digital technologies, legal personality, digital technologies as an object of legal protection, international strategies, legal responsibility, digital law, civil law, intellectual property object
24