Many of today’s products and services fall into the category of products and services that are, as such, legal but still unhealthy. Think of smoking as an example. This paper deals with the question of which mix of legal instruments should ideally be used in the light of such products and services. It distinguishes between products and services that predominantly lead to “harm to oneself” or “harm to others”. In the end, most law and economics arguments point in the direction of ex ante safety regulation. However, when there are concerns about the quality of regulation (eg due to lobbying efforts), liability has important added value. In the “harm to others” scenario, safety regulation is even more warranted because the larger number of victims and the increased difficulty to prove the causal link render litigation burdensome. Strict liability has several advantages over negligence and is, therefore, generally preferred. A strong point of negligence, however, is that it enables the court to conduct its own weighing of costs and benefits, which in specific circumstances may be better than that of the regulator or the producer. Furthermore, it enables the judge to consider not only the harm to the user, but also the harm to others in setting the due care standard.

In this editorial article, we aim to map out the central features of algorithmic regulation and its conceptual basis – seeking to bring together different strands of the literature relating to the topic that have often remained apart. We then reflect on the ways through which algorithmic law could evolve to address the challenges of artificial intelligence in the legal domain, particularly by examining the potential of applying a “prudential” test in order to determine whether automated decision-making systems are suitable to adequately support legal decision-making.

On 15 December 2020, the European Commission published its proposal for the Digital Services Act, which is expected to be adopted before summer 2022. It carries out a regulatory overhaul of the twenty-one-year-old horizontal rules on intermediary liability in the e-Commerce Directive and introduces new due diligence obligations for intermediary services. Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this article, we look specifically at the intersection of the Digital Services Act with the regime for online content-sharing service providers (OCSSPs) set forth in Article 17 of Directive (EU) 2019/790 on Copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap, as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the Digital Services Act will apply to OCSSPs insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States. This includes, to varying degrees, rules in the Digital Services Act relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where Article 17 CDSM Directive contains specific (but less precise) regulation on the matter. From a normative perspective, this might be a desirable outcome, to the extent that the Digital Services Act aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might help us to achieve that goal.

One of the few certainties we have in dealing with corruption lies in its adaptive nature. Over time, corruption has in fact proved to be able to change, evolve and adapt within all political systems. Such an adaptive nature calls for close scrutiny of the setting or space where corruption spreads out. Therefore, this raises questions about the unappreciated risks and immeasurable opportunities for corruption in the ever-changing and interconnected world of techno-social systems we live in. This article aims to advance the policy and regulatory debate surrounding corruption by focusing on its complex and adaptive nature. In applying the main tenets of complexity theory, the analysis builds on the well-known Cynefin framework. This decision-aiding framework proves to be an insightful tool for shedding light on some critical features of corruption (eg its perception and the affected confidence).

While nudging has garnered plenty of interdisciplinary attention, the ethics of applying it to climate policy has been little discussed. However, not all ethical considerations surrounding nudging are straightforward to apply to climate nudges. In this article, we overview the state of the debate on the ethics of nudging and highlight themes that are either specific to or particularly important for climate nudges. These include: the justification of nudges that are not self-regarding; how to account for climate change denialists; transparency; knowing the right or best behaviours; justice concerns; and whether the efficacy of nudges is sufficient for nudges to be justified as a response to the climate crisis. We conclude that climate nudges raise distinct ethical questions that ought to be considered in developing climate nudges.

Climate change and the pursuit of sustainability and sustainable business might be regarded as among the world’s “wicked problems”, especially as they are multi-dimensional problems. Achieving corporate accountability in this context is also difficult when corporate structures are complex as they operate globally and through supply chains. At the European level, under the Green Deal, the Sustainable Finance Initiative and the Sustainable Corporate Governance Initiative include new reporting requirements to amend and expand the scope and application of the 2014 Non-Financial Reporting Directive, alongside changes to directors’ duties to ensure they take account of stakeholders’ needs and environmental and human rights due diligence requirements. This paper will argue that these legislative and regulatory efforts are to be welcomed, but the complexity of the regulation threatens to undermine its potential impact. It may therefore be necessary to reduce some of the complexity of the regulatory arrangements. However, some complexity may increase resilience and adaptability for responding to the risks involved in the uncertainty and unpredictability of climate change and in dealing with complex corporate structures. The answer is to provide robust regulation that will prompt the corporate behaviours required to avoid the catastrophic trajectory we currently face.

This paper introduces the notion of legal tech solutionism and argues for how in an age where the development of legal tech is seen as a panacea for all ills it is important to evaluate the use and lifecycle of the technology before introducing it as a solution to the complex and structural problems that plague legal systems. It explores the framework of legal design and argues that legal design provides for a grounded and contextual approach to the development of legal products, content and services. To do this, the paper develops an approach that operates at three levels, including the value of building for usability, the importance of collaboration and community and the value of designing for many worlds to ensure an engagement with a plurality of contexts in the development of legal tech through evolving a grounded approach.

There is no time more opportune to review the workings of the International Health Regulations (IHR) than the present COVID-19 crisis. This article analyses the theoretical and practical aspects of international public health law (IPHL), particularly the IHR, to argue that it is woefully unprepared to protect human rights in times of a global public health crisis. To rectify this, the article argues that the IHR should design effective risk reduction and response strategies by incorporating concepts from international disaster law (IDL). Along similar lines, this article suggests that IDL also has a lot to learn from IPHL in terms of greater internationalisation and institutionalisation. Institutionalisation of IDL on par with IPHL will provide it with greater legitimacy, transparency and accountability. This article argues that greater cross-pollination of ideas between IDL and IPHL is necessary in order to make these disciplines more relevant for the future.

While it is a consumer’s prerogative to be offered all kinds of food products they can choose from, it is also a consumer’s own responsibility as to what kind of products they choose. It is still argued that free choice is only an illusion due to the general decline in food quality; in this context, the extent of free choice that the consumer has is considered, as well as the factors affecting it. These include fundamental European Union principles that demand strong science to prove safety, observe the lowest applicable quality standards and by extent offer a wide leniency range to food manufacturers when it comes to food quality. Another main factor stems from a food law that intensely focuses on securing food safety, while somehow disregarding quality. In addition to that, major efforts have been concentrated on strengthening food information for the purpose of enabling consumers to make healthier choices by both simplifying information on the front of packaging and increasing it on the back, while no direct changes targeting the composition of food have been proposed. As a result, what healthy food choices are left on the market and how accessible are they to consumers?

Human rights due diligence (HRDD) is the main (voluntary) process through which companies can assess and address negative human rights impacts. In recent years, however, mandatory HRDD requirements are increasingly seen as a more effective way to persuade more companies to better address human rights risks in their global value chains (GVCs). This study investigates whether such mandatory legislative initiatives can positively impact workers’ rights in GVCs as an essential part of those human rights that should be addressed in HRDD. The study provides an in-depth analysis of the legal framework of workers’ rights in GVCs. It then uses the French vigilance law as a case study to empirically investigate the effects of a mandatory HRDD duty for companies using a simple difference-in-differences analysis with data from the Refinitiv database from 2014 to 2020. The study shows that there are indications that the French vigilance law positively impacts corporate human rights conduct. This finding particularly holds for the practices of companies that can be considered “laggards”, which can imply that legislators need to increase the mandatory requirements to further improve responsible corporate conduct.

In recent years, the European Union (EU) has strongly promoted a human-centric and trustworthy approach to artificial intelligence (AI). The 2021 proposal for a Regulation on AI that the EU seeks to establish as a global standard is the latest step in the matter. However, little attention has been paid to the EU’s use of AI to pursue its own purposes, despite its wide use of digital technologies, notably in the field of border management. Yet, such attention allows us to confront the highly moral discourse that characterises EU institutions’ communications and legislative acts with a concrete example of how the promoted values are realised “on the ground”. From this perspective, this paper takes the case study of the European Travel Information and Authorisation System (ETIAS), an EU information technology system (planned to become operational in May 2023) that will provide travel authorisation to visa-exempt third-country nationals using a profiling algorithm. The paper shows, on the one hand, that ETIAS constitutes another piece in the massive infrastructure of digital surveillance of third-country nationals that the EU has been building for years. On the other hand, ETIAS’s algorithmic process is shown to be an instrument of differential exclusion that could well have an adverse impact on certain groups of foreign travellers. Ultimately, this paper argues that far from falling outside the scope of the trustworthy approach to AI championed by the EU, ETIAS – and more broadly the systematic risk evaluation predominant in the EU’s use of AI – is a constitutive part of it.

COVID-19 is a zoonosis, a disease transmitted by an animal to humans. The diffusion of the outbreak is therefore born of an unsuitable, insufficient, excessively permissive food safety system. Hence, the regulation of food safety plays a central role in the protection of health and has done so on a global scale. The overall regulation of food safety therefore requires an increase in the level of health protection, even at the expense of commercial prerogatives. For these purposes, four reform measures are suggested: to transform the Codex Alimentarius Commission into an organisation that adopts international standards with the sole purpose of protecting health; to apply the precautionary principle on a global scale and in international organisations; to strengthen the mandatory labelling tool; and to create a worldwide system of controls.

Various methods of genetic modification have been applied to plant breeding as an integral part of agriculture. This article examines a method of targeted mutagenesis – CRISPR-Cas9 – and its dysregulation in the European Union (EU). It provides clarity for food business operators relating to the traceability and labelling of food products induced using this biotechnology. In addition, it outlines policy recommendations to improve the regulation of such food products in the EU.

Private safety auditors are key constituents of modern risk governance in global value chains (GVCs). However, high-impact safety incidents causing extensive harm inside and outside the chain have cast widespread doubts as to the integrity and rigour with which these commercial auditors carry out their professional services. Civil liability has been considered an important legal instrument to incentivise auditors to improve audit accuracy and integrity. Relying on English law, this article assesses the extent to which this premise holds true for product safety and social auditing. To that end, it studies the liability exposure of private safety auditors for negligent auditing in GVCs. It is argued that this exposure is primarily a function of the contractual obligations these auditors undertake to perform for producers or suppliers in GVCs. This finding draws attention to the need to better understand and define the scope of the safety audits offered for risk management purposes within GVCs.

Under what conditions can artificial intelligence contribute to political processes without undermining their legitimacy? Thanks to the ever-growing availability of data and the increasing power of decision-making algorithms, the future of political institutions is unlikely to be anything similar to what we have known throughout the last century, possibly with parliaments deprived of their traditional authority and public decision-making processes largely unaccountable. This paper discusses and challenges these concerns by suggesting a theoretical framework under which algorithmic decision-making is compatible with democracy and, most relevantly, can offer a viable solution to counter the rise of populist rhetoric in the governance arena. Such a framework is based on three pillars: (1) understanding the civic issues that are subjected to automated decision-making; (2) controlling the issues that are assigned to AI; and (3) evaluating and challenging the outputs of algorithmic decision-making.

This article examines the extent to which tort law can be used to incentivise the creation of the circular value chain and the design of products that live up to the requirements of the circular economy. In doing so, this article focuses in particular on the concepts of product liability and value chain liability. It shows that whereas the product liability framework has clearly been thought out to fit the linear value chain, central product liability concepts are also sufficiently flexible to be able to take in circularity considerations. The same goes for the concept of value chain liability. This article also shows how both types of liability become intertwined in the circular value chain.

The role of software in society has changed drastically since the start of the twenty-first century. Software can now partially or fully facilitate diagnosis and treatment of a disease, regardless of whether it is psychological or pathological. Consequently, software plays a role comparable to medical equipment with a physical footprint. Understanding when software as a medical device must comply with applicable rules is vital for both manufacturers and regulators. We therefore examine the Medical Device Regulation to expand on the notion of intention, as this is the key basis for the classification of medical devices. Finally, we develop objective criteria that software must fulfil to be considered a medical device under European Union law.

This paper argues for a sandbox approach to regulating artificial intelligence (AI) to complement a strict liability regime. The authors argue that sandbox regulation is an appropriate complement to a strict liability approach, given the need to maintain a balance between a regulatory approach that aims to protect people and society on the one hand and to foster innovation due to the constant and rapid developments in the AI field on the other. The authors analyse the benefits of sandbox regulation when used as a supplement to a strict liability regime, which by itself creates a chilling effect on AI innovation, especially for small and medium-sized enterprises. The authors propose a regulatory safe space in the AI sector through sandbox regulation, an idea already embraced by European Union regulators and where AI products and services can be tested within safeguards.

This article sheds light on cybersecurity risk disclosure practices, offering explanations based on the corporate governance literature. We argue that cybersecurity risk management poses particular challenges for corporations due to amplified agency problems. Cybersecurity risks are increasing in number and growing in complexity for companies worldwide. The financial sector in the Benelux region was already digitalising rapidly when, in 2020, enhanced remote-working requirements due to the COVID-19 pandemic further contributed to risk exposure. Substantiating our theoretical discussion, we present and discuss insights as to the most pressing cybersecurity risk management issues in the financial sector based on evidence from semi-structured interviews with Chief Information Security Officers/Chief Security Officers from financial sector leads in the Benelux region. We discuss contemporary factors that might induce management to dedicate more attention to cybersecurity. This apparent shift in companies’ approaches regarding cybersecurity is likely to encounter obstacles and should not be expected to be an even and linear process, given the challenges of processing and communicating information in an environment featuring high uncertainty and technical complexity as well as potentially misaligned incentives.