Day: March 9, 2022

Tiamiyu on The Impending Battle for the Soul of Online Dispute Resolution

Oladeji Tiamiyu (Harvard Law School) has posted “The Impending Battle for the Soul of Online Dispute Resolution” (Cardozo J. Conflict Resol. 21) on SSRN. Here is the abstract:

Legal professionals and disputants are increasingly recognizing the value of online dispute resolution (“ODR”). While the coronavirus pandemic forced many to resolve disputes exclusively online, potentially resulting in long-term changed preferences for different stakeholders, the pre-pandemic trend has involved a dramatic increase in technological tools that can be used for resolving disputes, particularly with facilitative technologies, artificial intelligence, and blockchains. Though this has the added benefit of increasing optionality in the dispute resolution process, these novel technologies come with their own limitations and also raise challenging ethical considerations for how ODR should be designed and implemented. In considering whether the pandemic’s tectonic shifts will have a permanent impact, this piece has important implications for the future of the legal profession, as greater reliance on ODR technologies may change what it means to be a judge, lawyer, and disputant. The impending battle for the soul of ODR raises important considerations for fairness, access to justice, and effective dispute resolution—principles that will continue to be ever-present in the field.

Moerland & Kafrouni on Online Shopping with Artificial Intelligence: What Role to play for Trade Marks?

Anke Moerland (Maastricht University – Department of International and European Law) and Christie Kafrouni have posted “Online Shopping with Artificial Intelligence: What Role to play for Trade Marks?” on SSRN. Here is the abstract:

The debate on how artificial intelligence (AI) influences intellectual property protection has so far mainly focussed on its effects for patent and copyright protection. Not much attention has been paid to the effects of artificial intelligence technology for trade mark law. In particular, what has not yet been sufficiently investigated is the question as to whether trade marks still fulfil their role in a world in which consumers are assisted by AI technology when purchasing in the online market place. In how far do we still need trade marks to avoid consumer confusion? Or do the other functions of trade marks justify their continuous protection? In view of the fact that intellectual property rights have a market-distorting effect, it is in society’s interest to question whether trade mark protection is still justified.

Roberts et al. on Governing Artificial Intelligence in China and the European Union: Comparing Aims and Promoting Ethical Outcomes

Huw Roberts (University of Oxford – Oxford Internet Institute et al. have posted “Governing Artificial Intelligence in China and the European Union: Comparing Aims and Promoting Ethical Outcomes” on SSRN. Here is the abstract:

In this article, we compare the artificial intelligence (AI) strategies of China and the European Union (EU), assessing the key similarities and differences regarding what the high-level aims of each government’s strategy are, how the development and use of AI is promoted in the public and private sectors, and whom these policies are meant to benefit. We characterise China’s strategy by its current primary focus on fostering innovation and the EU’s on promoting ethical outcomes. Building on this comparative analysis, we consider where China’s AI strategy could learn from, and improve upon, the EU’s ethics-first approach to AI governance. We outline three recommendations which are to i) agree within government as to where responsibility for the ethical governance of AI should lie, ii) explicate high-level principles in an ethical manner, and iii) define and regulate high-risk applications of AI. Adopting these recommendations would enable the Chinese government better to fulfil its stated aim of governing AI ethically.

Beardslee DeStefano et al. on A Digital Transformation Roadmap for Corporate Counsel

Michele Beardslee DeStefano (University of Miami – School of Law), Bjarne P. Tellmann (GlaxoSmithKline), and Daniel Wu (Harvard University) have posted “Don’t Let the Digital Tail Wag the Transformation Dog: A Digital Transformation Roadmap for Corporate Counsel” on SSRN. Here is the abstract:

Due in part to the COVID-19 pandemic, enhancements in technology, as well as shifts in the macroeconomic and socioeconomic dynamics of globalization, Digital Transformation (DT) has become an enterprise-wide imperative for most multinational companies (MNCs). As a result, legal departments are being challenged to embrace enterprise DT and start their own departmental DT journeys. Despite these trends, there is little scholarship and research about how MNC legal departments are addressing the DT challenge. How are General Counsel (GCs) currently approaching DT? Is what they are doing effective and value-accretive? And importantly, how should GCs approach DT to best generate value?

This Article attempts to fill the literature gap. Based on interviews of 25 GCs and Chief Digital Officers of S&P 500 MNCs along with the authors’ professional experience and secondary research, we explore how legal departments are responding to and approaching DT. We identify a Three-Phased Digital Maturity Framework that maps the typical MNC legal department DT trajectory. We argue that this trajectory is suboptimal because it emphasizes technology at the expense of the foundational, non-technological elements of DT that are critical for success. Too often, GCs appear to let the digital “tail” of DT wag the transformational “dog”. The legal department must itself be fully transformed before the digital elements can add full value. By failing to ensure that the non-digital foundations of their departments are fully transformed in collaboration with the business before they introduce new technologies, GCs are leaving the most difficult aspects of DT—the organizational and structural, behavioral, and cultural changes—for last. This post-hoc approach (that leaves client-centricity and change management last) is disruptive, adds unnecessary cost, and threatens the credibility, viability, and timing of the entire DT effort on a go-forward.

As an alternative to this typical three-phased approach, we articulate a Best-Practice 5-Step for how GCs should approach DT. Ours is distinctive in that technology is only considered and applied after the service delivery model has been designed and processes have been optimized in accordance with the broader strategic and organizational contexts of both the legal department and the MNC itself. Moreover, our is iterative. Ours is also distinct in that throughout this process, change management principles are thoughtfully and consistently applied in each step. Contrary to standard depictions, we contend that if deployed correctly, DT can significantly transform how a legal department operates and can enable legal departments to add value in ways that go beyond generating efficiencies, reducing costs, and increasing speed-to-market. Our model provides a roadmap to help GCs better execute DT and leverage DT-generated data and insights, moving the legal department away from its standard depiction as a cost center to that of a revenue generator and value creator that is seamlessly integrated with the rest of the MNC.

In addition to filling some of the gaps in the literature, this article provides a vision that has broad applicability beyond the MNC legal department context and can be used as a model for law firms and other legal services providers to harness DT in their own contexts, so as to keep pace with—and better serve—their digitally transforming client base.