Papers by Andrea Leiter
Harvard Journal of International Law Frontiers, 2020
This short article offers an overview of the most commonly held understandings of the notion of c... more This short article offers an overview of the most commonly held understandings of the notion of cyber sovereignty and attempts to push the research agenda with further questions. First, it outlines the regularly offered distinction between state sovereignty and platform sovereignty in cyberspace. However, instead of holding with this distinction, it presents cyber sovereignty as a techno-legal sphere characterised by claims to governance by states, companies, and individuals. With this angle, cyberspace appears as one of the most significant sites of our contemporary political and economic life. Second, while this contribution suggests that we should work with an analytic frame that embraces the intertwined character of cyberspace as techno-legal space governed by a multitude of different actors, the article argues that on a normative level, we still lack an in-depth understanding of the contradictory interests of the actors involved. We have not sufficiently grasped the power structures in cyberspace on either the economic or the political plane. The article suggests drawing on the tradition of critical legal scholarship to first map the field along a set of fundamental questions and then define legal strategies for redistribution and inclusion in cyberspace.
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In our short article 'Legal Engineering on the Blockchain – Smart contracts as legal conduct' in ... more In our short article 'Legal Engineering on the Blockchain – Smart contracts as legal conduct' in 29 Law and Critique 2 (2018) we focus on smart contracts not as crypto currency, but as applications that enable complex interactions such as trading in real world property and services, licensing of intellectual property, licensing access to property and services in the Internet of Things (IoT), as well as institutional coordination through Decentralised Autonomous Organisations (DAOs). The paper examines the relationship between smart contracts and law, and tries to develop a framework that emphasizes the legal character of smart contracts, without promoting the popular catch phrase 'code is law'. In our thinking, concepts of 'legality', 'lawfullness' and 'jurisdiction' are more complex than can be encapsulated by architectures or technologies that regulate or condition behaviour. We approach the relationship between smart contracts and law by asking, how do smart contracts relate to existing legal systems? Or put in other words, whether smart contracts need to be understood as a completely novel form of governance, or rather as embedded in established jurisdictional institutions? How do they stand apart? What is unique about them, and what echoes previous experiences in law making? To answer these questions we draw on theoretical conceptions of jurisdiction, the history of the common law and experiences from commercial and investment arbitration. We suggest that smart contracts, and blockchain technology more broadly, should be thought of as an emerging jurisdictional environment that establishes a legal regime through practice. This regime is developed through two different law-making practices. The first one can be understood as a process of standardisation through the development of forms that are readable in code and in law. The second is the shaping of the interpretation of these legal forms through dispute resolution. The basic idea on standardisation is that form precedes the event. The only transactions that can be carried out on the blockchain are those that are written in readable code. Multiple entities such as Enterprise Ethereum Alliance, Mattereum, Open Law, Agrello, the R3 Consortium, Common Accord and Legalese, are participating in building a library of machine-readable contract modules. Most projects work with a version of a so-called Ricardian contract, developed by Ian Riggs, that consist of a natural language element and a code element. Other entities, such as the Lexon Foundation, are developing a human readable code language. The writ system in the common law emerged in a similar way. Writs are an early library of engagements with the legal world. The readability of legal reality became contingent upon one's ability to express it in the required form. The writ was a summons of the king by which particular interactions could be brought before the courts to be remedied. It is here that we see again how the form precedes the event. No writ no remedy, no remedy no wrong. Thus, smart contract modules take on this same character of providing the forms for recognisable interactions. Consequently, those who define the form, define the possibilities
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A new legal field is emerging around blockchain platforms and automated transactions. Understandi... more A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because 'smart contracts' do not themselves constitute agreements, the first necessary 'legal' development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain 'legalities', is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. These are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to 'soften' the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain.
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The centenaries of the Russian and Mexican revolutions of 1917 invite reflection on their impact ... more The centenaries of the Russian and Mexican revolutions of 1917 invite reflection on their impact on international law. Investment law, in particular, is ripe for such an inquiry, given that it has the protection of property at its core. The revolutions have been understood as challenges to the international system of property protection, 1 but despite inspiring the claims promulgated in the New International Economic Order they are said to have finally remained unsuccessful. After a period of uncertainty about the standard of compensation for expropriation in the first half of the century, today's bilateral investment treaties have established the Hull formula requiring prompt, adequate and effective compensation as governing rule in investment law. 2 Yet, I want to propose that the regime has taken a different turn as result of the revolutions – a turn that has somewhat escaped our attention, even though it encapsulates the political struggle over the distribution of wealth just as much as the debate over the appropriate standard of compensation did. It is the turn from property to investment. A look at the treaties and attempts at codification on rules of foreign property protection from the early 20 th century shows that the notion of investment started to replace the term property around the 1950s.
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Sciences Po, spring term 2020. Feel free to use with due acknowledgment
Algorithmic technologies are everywhere to assist, guide, implement and govern human activities. ... more Algorithmic technologies are everywhere to assist, guide, implement and govern human activities. In business, administrative, security, health, humanitarian, financial or commercial interactions, algorithmic devices allocate resources and knowledge using large amount of data, constructing behaviour and subjectivity in a singular manner. The relationship between law and code is often framed as: Is code law? This course investigates the way in which algorithmic devices govern in relation to law and normativity. It is premised on the idea that code and law have to be understood as a hybrid form of governance. The course is developed for students of different disciplinary backgrounds and serves as an introduction to both law and digital technologies from a legal perspective. It is guided by questions such as: What is the relationship between humans and machines with regard to law? What are the specificities of the type of governance performed by algorithmic technologies? What kind of political, scientific, legal and engineering expertise are deployed in algorithmic governance? The course builds on case-based investigations across fundamental legal domains, and theoretical reflections on the themes and modalities of algorithmic law and governance. It draws on interdisciplinary readings from law and governance, data science, ethics, legal theory, philosophy and science and technology studies.
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