I started this substack account to try and explain what is good legal in my view but also for the readers (and contributors to the discussion) going through these lines in search of ideas, best practices or inspiration to change for better the way we work.
It is well known that to address a specific issue or matter one should always try and look for as many sources, perspectives and points of view as possible to gather as comprehensive feedback as possible. This is relevant and applicable for any type of issue or decision one needs to make. It is a good practice, although a difficult one, to get out of your highly subjective mind, predefined opinions and subjective views on pretty much everything that touches upon our life and try and look at things as detached and objective as possible (free of externally imposed norms and rules). This is one of the reasons I have started to write this post, to put on paper my thoughts, questions and possible answers to reach the best possible decision which takes into account the surrounding objective reality.
As a legal professional, as you might suspect, I love (good:) law. Why? Because you can find an objective answer (or a clue) to any issues or situations you are facing to the extent the law follows the right framework for regulating human affairs in society. As the law is made by humans there is always some way to make it better, to improve it to better answer society's needs in a specific stage of its development. A law which is not capable to follow the development of society is essentially delaying and preventing the said development achieving the reverse purpose of a law - instead of facilitating and creating the right legal framework and environment for development and for society to thrive - it prevents it. The same logic can be observed with the practical implementation of a specific law or regulatory framework at national, local or global level; at a corporate or startup company level through the implemented corporate policies. The manner in which the law prescribes a conduit is affecting the way in which the legal subjects (individuals and companies) comply with that conduit. Similarly the manner in which a policy is drafted or missed to be drafted at all impacts the potential development of a company. If the law (or a company policy) is backward, incomplete or missing the vital elements it needs to regulate a specific situation the compliance with that instrument will be backward as well, halting any chance for evolution or proper development.
An obvious example of the fact that currently the legal regulatory environment is greatly behind society and technological development is the fact that laws are not able to significantly predict or even catch up with the evolution of society. New technologies emerge regularly while the legal framework continues to be in a perpetual snooze phase with intermittent alarm bells which abruptly disrupt how things work forcing the legal subjects (companies and individuals alike) to struggle with how to comply (see GDPR for a recent example).
Another example is electronic signature technologies which are on the market for more than two decades at least. Although they greatly reduce paper work based operations and bureaucracy their legal status is at best still unclear. This triggers uncoordinated adoption and resistance to digitize legal space. In some countries e-signature is recognized with clear exceptions (notarized or real estate documents) while in others they can be used only by private parties in a commercial setting as the e-signature is not recognized as being similar from a legal point of view to a handwritten signature (but only as an initial proof of evidence of a party' agreement- "An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for a qualified e-signature- even art. 25 eIDAS - is using a negative assumption for a potential positive result).
For example the EU legal framework to which the 27 member states subscribe has an overly complicated manner to deal with e-signatures dividing them in qualified, advanced and simple e-signatures (also timestamp, etc.), each one of them with its own legal status and purpose.
I will not go into the technicalities of each one of these e-signatures or debate the usefulness of making a straightforward matter overly complicated because as any legal professional knows you can justify almost any approach with sufficient legal jargon to make the simplicity of an issue or matter impossible to detect.
Because the regulators did not understand the evolution and potential of the technical environment to improve society as a whole, they regulated a technology to such an extent that it made it ineffective delaying any meaningful social transformation and digitalisation among private actors, consumers and the entire relation with authorities for decades. Only with the occurrence of Covid-19 pandemic a lot of countries re-assessed their e-signature policies and legal framework allowing authorities to interact with the citizens in a more digital manner by accepting e-signatures or at least being more permissive with their use, departing from an excessive legal formalism characteristic for continental Europe and Asia.
This ambiguity and lack of proactive approach by regulators in simplifying how the e-signature tools could help boost innovation, efficiency and various other economic and environmental benefits delayed economical development of a country negatively impacting its evolution and relation with its citizens.
Unfortunately this example is not a singular one, we can look in all industries where legal play a more or less significant role for the development of that industry or compliance requirements and where I am sure everyone of us can name at least 2-3 deficiencies observed in practice but which remain perpetually unaddressed (this is actually one of the main objectives of this newsletter - to identify these deficiencies and think of possible solutions).
There continues to be a growing with time disconnect not only between regulators and its subjects (natural or legal persons) but also between legal and tech which makes interaction between regulators and legal subjects frustrating and full of potential non-compliance with a negative result for all (and between the legal business world and academia which is operating somewhere outside the realms of reality).
If, as in the above example, the authorities would have clear legal mandates from regulators to use and encourage the use of e-signature as simple as possible in relation with natural and legal persons without various legal technicalities which allow them to disregard or indefinitely postpone adoption of e-signature (and for the same matter of any other technology), the legal-tech disconnect would be a thing of the past.
To solve these issues and avoid losing decades until something is regulated (mostly inefficiently) all laws and regulations should have included by default something we can call as a “technological print” in their text (a predefined space in a law requiring the law to use the latest technologies in the field that law is regulating without the need to amend that law - a self updated requirement if you will that will keep the law in line with technical development).
Lack of this technological print will continue to make existing laws and any new laws out of sync with a constantly changing technical environment shaping our lives irrespective of the fact that the law is up to date or is still regulating some obsolete social relations. Tech print can be as much as an carte blanche provision in any adopted laws requiring the enforcing entities (authorities) to always ensure (giving them the right and competence to update the practical implementation of the law) that the latest technologies are adopted in applying that specific law. This will ensure that the law is a living organism rather than a static document made obsolete the second day a new viable technical development occurs. A law dependant on the proactivity and sense of urgency of the legislator. It is one thing to regulate an existing situation provisioning for the future developments of that situation and it is another thing to playing catchup with the environment most likely after being forced by an already existing status quo (in a happy scenario such as with Uber; in a bad scenario an obsolete law can do as much damage as a law which is badly regulating something from the beginning stifling innovation and competition such as with e-signatures).
After all, everything that is adopted by natural or legal persons in their day to day lives depends essentially on the compliance with the law. If the law is not recognizing e-signatures they will not be used even though the technology exists. Similarly if the law restricts the use of software robots for fast data processing and automation of repetitive tasks even though the technology exists, the advantages of the technology will not be seen to their potential with a negative effect for both the provider of the technology (not incentivized to continue to develop and innovate) as well as for the society (blocked in a retrograde technological state of affairs).
Another example is also the ability of access to good legal resources to make law self sufficient. Currently the law and related access to good legal advice and resources which have an equivalent outcome of real unencumbered access to justice is the monopoly of lawyers even though there are already so many things which can be done with help of technology without a lawyer. But this is prevented at scale due to the said monopoly which is manifested and protected by the regulators with a more or less powerful legislation to their benefit.
If the law restricts free an unsolicited participation of anyone interested in improving lets say legal content, this should be allowed and not blocked by creating legal monopolies as we can currently see in the legal profession where only a licensed lawyer would be competent to provide someone with a legal template (in Romania for example the Bar even adopted certain guidelines indicating to the lawyers what should be the minimum fee for drafting a contract or a policy). Lawyers should be involved in complex legal matters not force them to prepare templates which you can now easily find online. It should be a personal decision of someone to use a lawyer for a template or not, likewise a lawyer should be free to decide on its work and its complexity. And this is only in relation to a more or less public policy of an organisation of the legal profession.
There are various technologies which can help any company or public authority do its work better and more efficiently and the only requirement should be that the legal regulatory framework encourages the use of these technologies and expand any good use cases to a wider operational scale.
Summarizing the main goal of this substack is to share experience and best practices in terms of what good legal means to bring a small contribution in the efforts to reshape the legal industry for better but also to connect and help each other as a community; and why not, maybe even drive meaningful regulatory change.