Law by Algorithm, Mohr Siebeck, 2021
Digitization, blockchain technology and Artificial Intelligence (AI) are fundamentally changing the fabric of societies, influencing lawmaking, legal scholarship and legal practice. The authors of this volume investigate the real-world developments that can be observed in this process, how established legal doctrines are being challenged, the regulatory issues societies face as a result, and how AI can be used in lawmaking and adjudication. By analyzing these four interrelated areas, the authors discuss conceptual issues of regulating AI, examine the impact of new technologies on commercial transactions and corporate governance, investigate civil liability rules for AI applications and explore key features and problems of digital dispute resolution. A recurring theme is that although “Law by Algorithm” might massively increase overall societal welfare, it runs the significant risk of benefitting only a few. To make it work for the good of all is a mammoth task – and one this volume hopes to contribute to.
COVID-19 and Business Law, Hart Publishing, 2020
This indispensable and immediate response brings together expert views on how the world of business should best respond to the COVID-19 pandemic. It will be required reading for those designing, interpreting and relying on business law when responding to COVID-19. The contributions are organised under six broad themes: Corporate Law; Financial Markets; Insolvency Law; Dispute Resolution; Competition Law; Regulation.
Mediation in der Wirtschaft: Wege zum professionellen Konfliktmanagement, Dr. Otto Schmidt, 2019
Potentiale der Mediation professionell nutzen. Konflikte in Unternehmen und zwischen Unternehmen bewältigen. Streitigkeiten schnell und kostengünstig beilegen.
Autonomous Systems and the Law, Nomos, 2019
Recent advances in artificial intelligence (AI) research and datadriven technologies stand to significantly transform the law: the values embodied in law, the way law performs its societal functions, and the practice of law. This volume brings together expert views on the challenges and opportunities that ?autonomous systems' pose for the law. The contributions are organized under three broad themes: (1) Smart contracts and dispute resolution; (2) FinTech and LegalTech; and (3) Data control and cybersecurity. This volume should be of interest to scholars, practitioners, policy-makers and technologists interested in the profound legal and policy questions raised by AI and the proliferation of data-driven technologies in today's world.
Negotiating Brexit, Hart Publishing, 2017
Brexit is on its way. By mid 2019, the UK will no longer be a member of the European Union and its new relationship with the EU will be have taken shape. Getting to that point will involve complex negotiations untangling legal, economic and political issues. This volume brings together leading commentators to examine three crucial questions on the risk, the negotiating framework and the process.
Verhandlungsmanagement: Analyse - Werkzeuge - Strategien, C.H.Beck, 2017
In Zukunft besser verhandeln. Das ist die Zielsetzung dieses Buches. Es wird die Fähigkeit vermittelt, Verhandlungen effektiv vorzubereiten und zielgerichtet zu führen. Für die Entwicklung von Strategien und die Optimierung von Verhandlungsprozessen sind Wissen, Verständnis und das richtige Konzept notwendig. Genau das wird in dem Buch verständlich und präzise vermittelt. Seit über 30 Jahren sind Verhandlungen Gegenstand der interdisziplinären Forschung (Spieltheorie, Psychologie, Wirtschafts-, Rechts- und Politikwissenschaft). Daraus und auf der Basis ihrer eigenen langjährigen Erfahrung im Verhandlungsmanagement haben die Autoren ein eigenständiges Workshop-Konzept entwickelt, an welchem sich die Struktur des Buches orientiert.
Effizienz als Rechtsprinzip: Möglichkeiten und Grenzen der ökonomischen Analyse des Rechts, Mohr Siebeck, 2015
Aus Rezensionen zu früheren Auflagen: "Es handelt sich um eine ganz außergewöhnlich sachkundige und gründliche Arbeit, die noch dazu so souverän und elegant geschrieben ist, daß es eine Freude macht, sie zu lesen. Selbst komplizierte Sachverhalte und Zusammenhänge werden einfach und unprätentiös dargestellt, ohne daß Gedankenklarheit und Präzision verlorengehen." Hein Kötz/Hans-Bernd Schäfer in Rechtstheorie 1 (1999) Band 30, S. 130-136.
"Digital Dispute Resolution"
This essay identifies and analyses key developments and regulatory challenges of “Digital Dispute Resolution”. We discuss digital enforcement and smart contracts, internal complaint handling mechanisms, external online dispute resolution and courts in a digital world. Dispute resolution innovations originate primarily in the private sector. New service providers have high-powered incentives and face fewer institutional restrictions than the courts. We demonstrate that with smart contracts, digital enforcement and internal complaint handling, a new era of dispute resolution by contract without a neutral third party dawns. This development takes the idea of a “privatization of dispute resolution” to its extreme. It promises huge efficiency gains for the disputing parties. At the same time, risks of an extremely unequal distribution of these gains, to the detriment of less vigilant parties, and of undermining the rule of law loom large. The key regulatory challenge will be to control the enormous power of large, sophisticated commercial actors, especially platforms. We suggest regulatory tools to address this problem.
"Towards a Principled Approach for Bailouts of COVID-Distressed Critical/Systemic Firms"
In this essay, we propose a principled approach for government bailouts of critical/systemic firms who find themselves in COVID-19-induced financial distress. We also demonstrate why bankruptcy is the wrong tool to address the problems of these types of firms.
The current pandemic threatens lives and livelihoods across the world. A key difference compared to previous market shocks is that lockdowns and related measures have, in certain instances, made it impossible for businesses to conduct their operations. This has resulted in a very specific type of distress, one that bankruptcy is not in the best position to address effectively. If there are no revenues, the design of bankruptcy laws makes them an inadequate tool – and the sheer volume of companies going through the process may put severe stress on the system. The difficulties that the vast majority of companies are encountering may be better solved using different tools: bailouts, bail-ins or a combination thereof, deployed by the government in wide-ranging statutory schemes.
However, these schemes may not adequately address the issues of all companies; and the preservation of some of them – those that we refer to as critical/systemic – may be of such significant value to society that more intense assistance from the government is justified. We engage with the characteristics of firms that should be considered critical/systemic and the principles that should guide ad hoc rescues of those companies by the government. Firms are critical/systemic if their failure imposes significant negative externalities on the economy (or, conversely, their preservation generates significant positive externalities) or if they provide the public with an “infrastructure” not otherwise provided by the private sector. If firms are critical/systemic, the government should have the ability to bail them out, going beyond applicable statutory schemes and ensuring that the relevant externalities are considered when deciding whether to keep these companies as going concerns. Bankruptcy is a private process. It is not designed to vindicate such public considerations.
Government bailouts, however, should be governed by principles, as any government intervention in the economy, and its associated efficiency and distributional effects must be considered with care. The guiding principles that we propose and elaborate on are (i) proportionality, (ii) efficiency, (iii) equity and (iv) transparency. The application of these principles should ensure that, if the government takes ownership of a private firm through an ad hoc bailout, this is a tool of last resort, and not more than temporary – and that the pre-distress investors properly contribute to the necessary measures.
"Taming the Corporate Leviathan: Codetermination and the Democratic State"
Two prominent progressive senators, Bernie Sanders and Elizabeth Warren, have recently proposed that employees should be allowed to elect 40 to 45 percent of the directors of large corporations. If implemented, such a reform would bring U.S. corporate law substantially closer to European countries like Denmark, Germany, and Sweden, where worker codetermination has long been a central feature of corporate governance.
An extensive body of theoretical and empirical scholarship analyzes codetermination’s economic impact on corporations and their employees. This Article focuses on a different issue. It examines codetermination’s potential for protecting our democracy against the dangers inherent in the accumulation of extreme wealth and power by private corporations.
Concentrated corporate wealth creates the risk that corporations will use their resources to undermine democratic institutions. This Article argues that codetermination can mitigate this risk by splitting corporate voting rights between shareholders and employees, thereby playing a role that is broadly similar to that of the Constitutional separation of powers.
"Bail-outs and Bail-ins are better than Bankruptcy: A Comparative Assessment of Public Policy Responses to COVID-19 Distress", 15 Virginia Law & Business Review 199 (2021)
COVID-19 has severely disrupted the conduct of business around the globe. In jurisdictions that impose one or more ‘lockdowns’, multiple sectors of the real economy must endure prolonged periods of reduced trading or even total shutdowns. The associated revenue losses will push many businesses into bankruptcy. No public policy response can recover these losses. States can, however, act to reduce the amplification of the shock by the way in which they treat the cohort of newly bankrupt businesses. In jurisdictions where a well-functioning reorganisation procedure can produce value maximising outcomes in normal conditions, the temptation may be to subject this cohort to such procedures. This temptation should be resisted, not only because of the (significant) costs of these procedures, or because of concerns about institutional capacity to treat a high volume of cases, but also because such procedures are likely to be a poor ‘fit’ for the treatment of COVID-19 distress. The more attractive routes to relief are bail-ins (one-time orders to creditors or counterparties, or some class thereof, to forgive), bail-outs (offers to assume the debtor’s liabilities, or a class thereof), or some combination of the two. In this paper, we explain why a public policy response is necessary to mitigate the amplification of the shock caused by trading shut-downs, and we compare treatment by the prevailing bankruptcy law with treatment by bail-ins or bail-outs along a range of dimensions. We conclude by suggesting principles to help guide the choice between bail-ins and bail-outs, and the design of either form of intervention. These principles should offer a useful starting point for thinking about the design and delivery of novel forms of relief to debtors distressed by COVID-19 related revenue losses.
"What Is An Arbitration? Artificial Intelligence And The Vanishing Human Arbitrator", NYU Journal of Law and Business 17 (2020), 49
Technological developments, especially digitization, artificial intelligence (AI), and blockchain technology, are currently disrupting the traditional format and conduct of arbitrations. Stakeholders in the arbitration market are exploring how new technologies and tools can be deployed to increase the efficiency and quality of the arbitration process. The COVID-19 pandemic is accelerating this trend. In this article, we analyze the “Anatomy of an Arbitration.” We argue that, functionally, fully AI-powered arbitrations will be technically feasible and should be legally permissible at some point in the future. There is nothing in the concept of arbitration that requires human control, governance, or even input. We further argue that the existing legal framework for international commercial arbitrations, the “New York Convention” (NYC) in particular, is capable of adapting to and accommodating fully AI-powered arbitrations. We anticipate significant regulatory competition between jurisdictions to promote technology-assisted or even fully AIpowered arbitrations, and we argue that this competition will be beneficial. We expect that common law jurisdictions will enjoy an advantage in this competition: machine learning applications for legal decision-making can be developed more easily for jurisdictions in which case law plays a pivotal role.
"Codetermination: A Poor Fit for U.S. Corporations", Columbia Business Law Review 3 (2020), 870
The idea that a corporation’s employees should elect some of the corporation’s board members, a system known as codetermination, has moved to the forefront of U.S. corporate law policy. Elizabeth Warren’s Accountable Capitalism Act calls for employees of large firms to elect forty percent of all board members. Bernie Sanders’s Corporate Accountability and Democracy Plan goes even further and states that workers should elect forty-five percent of board members.
Both Warren’s and Sanders’s plans are broadly similar to the German law on codetermination, which for many decades has allowed employees of large German corporations to elect up to half of all board members. It is therefore unsurprising that Senator Sanders points to Germany’s successful economic development as evidence that economic progress and mandatory codetermination can go hand in hand.
However, this Article argues that codetermination promises to be a poor fit for U.S. corporations. While Germany arguably reaps significant benefits from codetermination, legal, social, and institutional differences between Germany and the United States make it highly unlikely that the United States would be able to replicate those benefits. Furthermore, the costs of codetermination probably would be much higher in the United States than they are in Germany.
"Self-Driving Corporations?", Harvard Business Law Review 10 (2020), 87
What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term “data governance.” The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges — and liability risks — at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call “self-driving subsidiaries” performing very limited corporate functions. Replacing humans on corporate boards with machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling “algorithmic failure,” that is, unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
"Setting Up Dates With Death? The Law and Economics of Extreme Sports Sponsoring in a Comparative Perspective", 30 Marq. Sports L. Rev. 1 (2019), 191
Extreme sports and extreme sports sponsoring have become key features of the modern entertainment and sports industry. This article attempts to investigate fundamental issues of the law and economics of extreme sports sponsoring from a comparative perspective. A set of 40 interviews were conducted with sponsored athletes between June and September 2018. These interviews provide an up-to-date and, to the best of my knowledge, unique account of contract practice regarding extreme sports sponsoring worldwide. The main findings of the article can be summarized as follows: First, extreme sports sponsoring contracts are currently unbalanced. Risks and rewards are unbundled—while the athletes bear almost all the risks, the sponsor firms reap almost all of the rewards. This does not necessarily imply that the current contracting practice is inefficient. Unequal bargaining power and strong non-monetary incentives of athletes may account for an uneven distribution of the monetary cooperative surplus. But the available evidence suggests that the current practice incentivizes athletes to take inefficient risks, and, based on athletes’ preferences, there are ways to significantly increase the cooperative surplus compared to the status quo. In particular, firms could arrange for comprehensive health, disability and life insurance for the benefit of athletes and their families—at little costs to firms and with a significant positive effect on athletes’ welfare. Firms could establish systematic counselling, coaching and training programs for athletes, and they could move away from bonus-based compensation schemes. Second, sponsor firms face higher duties of care vis-à-vis young and/or inexperienced athletes. These athletes, in particular, are prone to “inefficient risk-taking”. Depending on the factual circumstances of the individual case, these duties may include enhanced counselling, coaching and safety training, as already mentioned. They may also require firms to refrain from subjecting young or inexperienced athletes to extremely high-powered financial incentives (bonus schemes) that encourage inappropriate risk-taking. Third, sponsors also face higher duties of care if they are involved in or influence the organization of extreme sports events or control the premises/facilities on which such events take place. Fourth, currently, sponsored athletes are treated by sponsors as independent contractors. Depending on the facts of each individual case and the applicable legal standard to delineate independent contractors from employees, this may or may not be correct. This article suggests that courts should give more weight to economic (in)dependency as a relevant standard in addition to control exercised by sponsor firms when assessing whether a sponsored athlete is an employee. Further, even if an athlete cannot be characterized as an employee of a particular sponsor, the level of control exercised by that sponsor and the athlete’s economic dependency on him or her are factors that should weigh in on the sponsor’s duties of care under contract and/or tort law, creating a more finely tuned regulatory system than the dichotomy of independent contractor and employee suggests.