Subproject 1: Technical Enforcement vs. Legal Enforcement

Legal enforcement in its literal sense could be defined as an effective measure by means of which a certain rule, law or an obligation is duly observed. In order for an enforcement to have legal effect, the matter at hand would therefore require to be addressed by existing laws and to have been defined by law accordingly. Technical enforcement, on the other hand, implies the involvement of a technical measure which would enable the effective observance of an obligation or a decision, without impeding recourse to enforcement tools provided by laws of a given jurisdiction.

For instance, The Internet Corporation for Assigned Names and Numbers (ICANN) operates an intra-network dispute resolution platform under its Uniform Dispute Resolution Policy (UDRP). The mechanism allows for technical enforcement of decisions, albeit limited to disputes related to internet domains. Further questions arise in the context of e-identification, including e-signatures and e-seals, a domain regulated under the EU e-IDAS Regulation. How and to what extent would these facilitate enforceable transaction authentication and electronic verification in the context of the use of technology?

Moreover, smart contract codes, used as decentralised applications in Distributed Ledger Technology (DLT), have triggered a wide range of discussions as to their technical capability to self-enforce (contractual) terms and conditions. DLT allows for the running of predominantly peer to peer (P2P) networks for the purpose of creating a trust framework between peers, whereby, among others, assets can be exchanged. Once mutually agreed terms are defined in a software code, a smart contract code would enable an automatic, often irreversible and traceable course of events, provided that the set conditions, such the use of oracles as external input data, are duly met. From a practical perspective, these decentralised applications would require a minimum level of interoperability with verification and identification processes defined by contract law. This perspective would go against the popular conviction that ‘code is law’, expressing the view that smart contract codes would eventually replace traditional legal conceptions embedded in contact formation.

The pillar will in particular explore existing and emerging network infrastructures that have adequate mechanisms in place to enforce internal decisions by means of technical features, as well the degree of interoperability with applicable laws.