Abstracts
Opening keynote - What preventive and proactive law
has to offer the IT business and vice versa - Edward A. Dauer, Dean
Emeritus and Professor of Law, University of Denver, College of Law, USA
Although this has never been statistically tallied, it seems clear that
legal risk may arise from either a failure of proactive documentation,
or from a flaw in an organization's culture. People create legal risks,
doing just what they believe the organization expects them to do.
Indeed, it is probably true that whenever law and culture conflict,
culture will almost always win. Legal risk management therefore calls
for attention to both - to thoughtful proactive contracting, and to
pragmatic shaping of a culture of legal compliance and good governance.
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An economist's view of proactive law
-
Henrik Lando, Professor, Department of Industrial Economics &
Strategy, Copenhagen
Business School, Denmark
Proactivity is a natural part of law & economics. This presentation
provides an introduction to why contracts and other legal arrangements
should or should not be managed proactively. The presentation also
comprises reflections on the (economic) effect of regulating or managing
legal relations by technological means.
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Single sign on market places and other
legal challenges - Nicklas Lundblad, Vice President of Stockholm Chamber of Commerce, Sweden
Single sign-on and other usability enhancing features may well lead
to new problems; in creating proactive solutions we often find new
problems that need to be addressed. Here some examples of this will be
discussed.
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Slides (pdf 633 KB)
E-government - a prospering
e-business model - Dag Wiese Schartum, Professor of Law, University of Oslo, Norway
E-government is to a large extent about transferring work from a
government agency to other government agencies, private businesses and
individuals. Such outsourcing may seem to entail a loss of government
control and thus a higher risk of prospective legal conflicts. However,
e-government as a prospering e-business model is about shifting work to
other actors while still retaining control.
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Information resources - the new corporate
asset - Jarl Magnusson, Director, Norske Veritas (DNV), Information Resource
Management, Norway
Information has become one of the most significant resources for the
evolving Information Society, or Digital Society as articulated for this
conference. Our ability to manage, use and control data and information
will directly relate to the confidence we feel and the rationality,
effectiveness and safety we can expect from the public sector. It's not
a question of what kind of computers we will have or if Microsoft has
the best software packages or the type of broadband network, that's
important, the issue here is actually about the availability and
accuracy of data and information. Proactive law means (of a policy or
action) controlling a situation by causing something to happen rather
than waiting to respond to it after it happens. This indicates a change
in view of how we apply and use our laws, rules and regulations. We will
through the proactive law construct be able to rule in favor (or
against) citizens before they even know about it. In order for this to
work, we need to transform current legislation into automatic and
repetitive rules, that will capture needed decision support information
and deliver a rules-based outcome (decision or recommendation).
The information society is much faster than the information
technology society we have today. There are a number of Paradigm Shifts
we need to pass through, like going from handling documents to managing
the information content and going from identifying computers to
identifying physical and legal persons.
Our desire must be to strengthen democracy and protect
citizens’ rights and freedoms. A prerequisite for that is to increase
citizens’ ability to understand society and abide by laws, rules and
regulations. Society should better understand citizens’ needs, so the
right public service and support can be provided at the right time
(automation). And, all this is possible if and when we focus more on our
information resources.
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Slides (pdf 777 KB)
Vendor collaboration in the digital
society - Babak Sadighi, Swedish Institute for Computer Sciences, SICS, Sweden
Traditional security mechanisms are designed to prevent bad behaviour
or enforce good behaviour of users. For technical or economical reasons
they are not suitable for use in collaborative environments. Agreements
between enterprises prescribing how they should interact, how their
interaction should be monitored, and what the consequences of their
misbehaviour are, fill the gap where security mechanisms cannot be
employed. Moreover, agreements will allow higher flexibility for the
users to adapt their actions to current, sometimes unanticipated,
situations, something traditional security mechanisms are unable to.
However, managing these agreements requires security mechanisms, e.g.,
to ensure integrity of the agreements and to guarantee secure
evidence-gathering for their fulfilments and non-fulfilments.
This talk will highlight the importance of and the need for
languages and mechanisms supporting specification, management and
enforcement of agreements among collaborating enterprises. We present
some existing approaches and research developments in this area.
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The value of information - the business
perspective - Jonathan Armstrong, Eversheds,
UK
This talk will explain some of the experiences in looking at the
value of information - the legislative background and likely additional
pressure points for global businesses. Jonathan will illustrate his talk
with case studies on issues like phising, cybersmearing, aggregation,
blogging and paid-for placement.
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A business approach to long term archival
of electronic documents - Mikael Dahlin, Corporate Archivist, Head of
Documentation Department, Swedish Prosecution Authority, Sweden
E-business discussions about record management conventionally take
its starting point in systems for different kinds of on-line
transactions. Not least the formal legal requirements of long-term
archival of business records prove in practice to be a true challenge to
management. By proactively taking advantage of information standards
much can be accomplished not only in terms of legal compliance but also
as regards corporate governance.
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Digital rights management - Niels Bo Jørgensen, Attorney-at-Law, Johan Schlüter law firm, Denmark
Digital Rights Management Systems (DRMS) comprise technologies that
identify, describe and regulate digital content in the form of sound,
video or software in digital format - typically media products, which
are protected by copyright.
Content owners use DRMS to enforce the terms and
conditions under which the content is available, e.g., to facilitate
legal copying and reuse of content by establishing an environment in
which rights-holders are compensated for private copying; to limit or
broaden the consumer's access to and use of the material, either so that
the customers can carry out a certain number of copies of the material
or so that the customers can access the content wherever and whenever
they choose - or limiting certain geographic regions from access to the
material.
Standards have a fundamental role to play in establishing
DRMS in the marketplace. Without standards neither compatibility nor
interoperability would be possible. Along with interoperability consumer
acceptance is a key word in DRMS. An example of this can be the iPod
music services. Relying on proprietary protection through its FairPlay
DRM, Apple effectively creates entry barriers to its portable players
and download market. Competitors, both through technological and legal
means, have recently challenged this practice.
On the consumer side, questions arise concerning the removal
of DRM from digitalised music, film etc. and the legal requirements
applicable to the use of DRM for gathering personal data. Though as a
starting point, "Internet is just another media", there are several
issues that should be considered before making use of such data - or
removing the content-protection technologies that may be applied as part
of the service provider’s DRM policy. The INFOSOC directive supports the
use of DRMS by protecting technical measures and by requiring member
states to take into account the application and non-application of
technological measures when providing for fair compensation in the
context of the private use exception for which fair compensation is
required. But in a recent French court case, the court prohibited
certain companies from using technological measures on a specific DVD
because it would be incompatible with the exception for private copying.
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Do we need electronic signatures and can
we trust them? -
Cecilia Magnusson Sjöberg, Professor
of Law, Stockholm University,
Sweden
Electronic signatures have come to play a more important role over
the years both in the context of e-commerce and e-government. It is now
high time to reflect upon which security functions are in fact needed
from a legal point of view in order to accomplish trusted e-business. A
legal risk analysis is particularly warrented considering that
electronic signatures might give rise to unfounded trust as well as
unfounded mistrust.
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Proactive Law in Practice:
Safe Sales through proactive contract management, online and offline - Helena Haapio, International Contract Counsel, Lexpert Ltd, Finland
Large organizations make hundreds of contracts each day. The quality
of those contracts has a significant impact on both business performance
and risk exposure. Some companies are still learning the hard way that
getting contracts wrong is expensive.
Even small transactions can expose a company to a large
overall risk. Contracts can provide certainty, but can also contain
pricing or other errors. When dealing internationally, it is
particularly easy to get into legal trouble. Relationships suffer and
the damage caused to reputation can be permanent. Automated processes
and forms can multiply the hazardous impact. Instead of profits, they
may be generating problems at Internet speed.
This session suggests that many of these issues can be
resolved through Proactive Contracting: the conscious use of contracts
as business and risk management tools. It is not enough to look at one
contract at a time; we need to look at the entire contract portfolio and
the process through which it is generated. Corporate Governance policies
require a disciplined and thorough contracting process. Effective
inter-professional collaboration is needed in the design and management
of that process, so that it produces successful relationships and
trouble-free transactions on an ongoing basis, even when people change.
Contract authoring tools and contract management systems are now
available to help. Using existing technology, we can provide clients
with skills, tools and techniques that support them in reaching business
goals and avoiding project failures. Working together, fusing sound
business and legal practices, we can systematically secure Safe Sales:
integrate quality and risk management with Proactive Law, and embed them
into our clients’ presales and sales processes, on-line and off-line.
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E-negotiations - Eric M. Runesson, Partner at Sandart
& Partners,
Sweden
IT has opened up great opportunities to use software solutions in
order to facilitate analysis, decision-making and agreement drafting. An
analysis that only some ten years ago took weeks to work out can now be
made in minutes. During the presentation Eric M. Runesson will discuss
and demonstrate how IT-solutions can be used proactively in contract
negotiations as an analytical tool in complex multi-issue negotiations
and so called post-settlement settlements. This part of the presentation
will include some empirical findings from an experiment regarding how
good or bad we seem to be when it comes to maximizing value and crafting
optimal negotiation results. He will also demonstrate how a system for
automated contract drafting might work and be a part of a broader
contract management solution. IT has also brought forth a new
communication channel for negotiators which have proven to be both good
and bad. Eric M. Runesson will conclude the presentation by drawing
attention to how the communication in negotiations face to face might be
different from communication via e-mail and discuss how some of the
perils inherent in e-communication can be avoided.
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Websites, new legal risk exposure and
insurance -
Sari Lintumaa, Senior Manager, Aon Finland Oy, Finland
Websites and new technologies offer vast opportunities to expand
business worldwide, collect information and communicate faster than
ever. On the darker side of these opportunities hide new legal risks,
such as infringement of intellectual property rights, damage to computer
data or networks, and losses sustained due to denial of service.
Today more and more companies admit that legal risks are an
essential part of their risk portfolio. Legal risks have still not
gained the attention they deserve when determining a company’s risk
management policy. The management of legal risks is an essential part of
business process just as management of any other risk. Yet legal risks
may be put aside for lawyers to handle. And for lawyers, the management
of legal risks may be synonymous with the mitigation of losses, not a
proactive process to prevent problems from emerging in the first place.
Sure, we can learn from losses but it is the hard way, and definitely
not the most economic one.
The realization of legal risks may lead to substantial
financial losses and have a catastrophic impact on a company’s business.
The obligation to pay damages is just one of the adverse effects.
Imagine what a high profile liability case may do e.g., to a company’s
reputation, stock value, and profitability in the long run!
Insurance programs may offer some financial help – or they
may not. Traditional insurance policies may still have huge gaps in
respect of website legal risk exposure leaving the company to conquer
the risks alone with its own assets. Proactive measures are needed to
manage these risks and to build insurance cover where possible.
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Legal risk management in a global, electronic
marketplace -
Jan Trzaskowski, Research fellow, Law Department of Copenhagen Business School, Denmark
Information on the Internet may be downloaded from all over the
world. By carrying out commercial activities on the Internet, businesses
expose themselves to the risk of infringing the law of multiple states.
Law may be enforced through the Judiciary (traditional law enforcement)
or by alternative means such as blocking and unfavourable commenting
(alternative law enforcement).
Within public law (criminal and administrative law), it is
quite difficult to enforce legislation by traditional means if the
defendant has no assets in the foreign state, where legal action is
taken. If, however, the enforcement is carried out by private parties,
such as consumers, competitors and private organisations, the access to
cross-border law enforcement within Europe is substantially better.
Even though the Internet is a global medium, it is possible,
at least to some extent, to apply means of geographical delimitation,
whereby businesses may mitigate or eliminate the risk of cross-border
law enforcement. Businesses may also include clauses on jurisdiction and
applicable law, which to some extent can eliminate the risk of
cross-border law enforcement.
The provisions of the EC Treaty constituting the Internal
Market and the country of origin principle of the 2000 E-Commerce
Directive, influence possibilities in cross-border law enforcement
within the Internal Market. It cannot be excluded that EC legislation,
to some extent, limits businesses' access to confine their activities to
certain jurisdictions.
The purpose of this presentation is to provide an overview of
the possibilities in cross-border law enforcement and the means of
risk-mitigation, which may be applied by businesses in this context.
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