Directors’ duties and AI regulation

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ABSTRACT Companies are powerful initiators and adopters of AI, as they have been of previous industrial revolutions. Their boards of directors and the regulatory frameworks that govern directors will inevitably influence the development and implementation of AI. However, despite intense attention to AI regulation the regulatory contribution of directors’ duties remains relatively unexamined. This article critically analyses the capacity of these longstanding legal principles to assist with wider AI regulatory goals, demonstrating that directors’ duties have direct consequences for the regulation of AI. Evolved in response to the governance context of a complex artificial entity, the corporation, directors’ duties map onto key AI regulatory requirements. These include the need for broadly accepted but flexible and responsive norms, and a capacity to engage post-facto with both nuanced, complex fact situations and opaque decision making processes. Directors’ duties jurisprudence brings with it experience of reverse-engineering fact situations and responding to disembodied legal actors, two factors that may have wider AI regulatory application. Directors’ duties also demonstrate responsiveness to changing social perspectives, facilitating integration of developing attitudes to AI. Attending to the AI regulatory role played by directors’ duties can inform effective AI regulation and facilitate improved regulatory design overall.