Principle Of Technological Neutrality Research Articles

Principle of Technological Neutrality in Trade Facilitations: A Legal Perspective

Introduction to The Problem: Electronic and digital trade systems encourage the use of information technology in their services. One of these is the single window. Technology is a neutral aspect of life that can pose significant problems in facilitating trade. These issues stem from the large-scale use of ICT that may cause inefficiency, uncertainty and barriers to trade through discrimination. Regulations related to technology continue to adapt to existing developments so as to ensure a sense of security and legal certainty in the use of technology. The concept of technology neutrality was created by the state to regulate the impartial or neutral use of technology. Purpose/Objective Study: This study aimed to describe the application of the Neutral Technology Principle in Trade Facilitation from a legal perspective and how the concept of neutral technology should be applied in international trade facilitation. Design/Methodology/Approach: The methodology used in this study is legal research with the normative judicial approach. Findings: The Principle of Technological Neutrality can guarantee the implementation of the principles of non-discrimination, efficiency, sustainability, and legal certainty in trade facilitation services. Paper Type: Research Article.

Legal Regulation of Cybersecurity of the Circulation of Digital Financial Assets

The key feature of digital financial assets and other crypto assets is that their circulation is carried out within the framework of an information system based on decentralized ledger technology. In this regard, for the purposes of stability and protection of the rights of investors, ensuring the cybersecurity of such a system is of great importance. The purpose of this article is to study the provisions of Russian legislation in the field of cybersecurity of information systems through which the circulation of crypto assets is carried out, and their comparison with the legislation of foreign countries, primarily France and Malta. As a result, the author concludes that the existing legal regulation in Russia is of a general nature, which hinders the formation and development of the market for digital financial assets in Russia. In this case, the question inevitably arises regarding the specification of legal requirements. In particular, how detailed should the legislation establish technological requirements? It seems that regulation should follow the principle of technological neutrality, that is, establish general requirements and goals, but not provide for the use of any specific technology.

REMARKS ON TECHNOLOGICAL NEUTRALITY IN COPYRIGHT LAW AS A SUBJECT MATTER PROBLEM: LESSONS FROM CANADA

AbstractThe paper argues that the principle of technological neutrality in copyright law is best grasped, not as a policy-driven imperative seeking to adapt copyright law to the exigencies of the digital environment, but rather as a principle immanent in the modern concept of copyright subject matter providing that merely technical or non-expressive uses of works of authorship do not attract liability. Technological neutrality is but a corollary of originality; that is, of the elementary proposition that copyright law protects original expression and nothing but original expression.

Management of Distribution Risks and Digital Transformation of Insurance Distribution—A Regulatory Gap in the IDD

The Insurance Distribution Directive (IDD) aims to regulate insurance distribution in the EU regardless of distribution channels and means. Although new technologies affect insurance distribution, the IDD does not explicitly regulate this digital transformation. Insurers and intermediaries must comply with detailed business conduct rules that aim to counteract distribution risks. However, the IDD exempts ancillary insurance intermediaries from its scope when they meet certain conditions. The article highlights the regulatory framework on insurance, requiring insurers and intermediaries to address distribution risks, and analyses how this exemption affects the management of distribution risks in online distribution from a legal perspective. The focus on online distribution depends on the scale such distribution can achieve. The consideration of the scale allows for challenging the political choice behind the exemption of ancillary insurance intermediaries, which consists of the principle of proportionality. A regulatory proposal to counteract these adverse effects is to remove the exemption from the IDD rules for ancillary intermediaries in online distribution. Such a proposal is compliant with the principle of technological neutrality and is in line with the new legislative proposals in the Digital Services Act and Digital Markets Act.

Technological Neutrality and Regulation of Digital Trade: How Far Can We Go?

Abstract In this age of rapid digital transformations, the principle of technological neutrality can help the international economic community adapt dated rules to changing realities. While the acceptance of this principle would respond to the difficulty of timely norm making and norm updating in international relations, it could also cause legal uncertainty in the case of unforeseen technological developments in the future. Therefore, not every country today is willing to unconditionally acknowledge the applicability of ‘old’ rules for any emerging trading patterns enabled by, or based on, digital and other technological innovations. The World Trade Organization, the United Nations Commission on International Trade Law and several regional trade agreements have addressed technological neutrality in the context of electronic commerce and digital trade. This article examines this issue, focusing on such areas of trade regulation as services, intellectual property and paperless trading, and concludes that the principle of technological neutrality should be given universal recognition, supplemented by policy flexibilities where necessary.

The Significance of Enabling Human Consideration in Policymaking: How to Get the E-Ferry That You Want.

There is broad agreement in literature and policy that the transport sector needs to maximise electric mobility, in order to lower both energy consumption and greenhouse gas emissions. This ongoing transformation continues to require a high degree of technological innovation. Consequently, policymakers are striving to reward innovation in procurement tender contracts, in order to achieve sustainable innovation. At the same time, such contracts are often designed with a principle of technology neutrality in mind, to prevent any distortion of the market logic. This article suggests that it is misguided to try to perfect the logic of the tender system and that articulating contract that rewards innovation is no guarantee of a sustainable solution. Rather than being technological, the problem should be seen as moral: the mounting environmental challenge. Policymakers thus have clear ideas about the action needed based on what they, through moral conviction, consider to be appropriate action. This case study—conducted as a part of the EU H2020-funded ECHOES Project under Work Package 6—on the electrification of the Flakk–Rørvik ferry connexion reveals how policymakers were able to achieve the intended results: in this case, an e-ferry rather than a biodiesel ferry, in spite of, rather than because of, the tender system logic. They achieved this by involving stakeholders in the process with a continuous and uninterrupted dialogue. The project stakeholders were able to intervene in the tender system logic in favour of human considerations. We argue that this project was a success because human judgement, not system logic, was the driving force. By extension, we argue that systems will only allow policymakers to pursue moral issues to the degree that they allow human intervention.

No More Strategical Neutrality on Technological Neutrality: Technological Neutrality as a Bridge Between the Analogue Trading Regime and Digital Trade

AbstractThe World Trade Organization (WTO), a unique multilateral trading regime, has failed to establish its relevance to the digital nature of trade. This article revisits the ‘principle of technological neutrality’ to make the cross-border supply of services by electronic means subject to the current rules-based trading regime. I argue that the principle of technological neutrality could help resolve a number of thorny legal issues: confirming the applicability of the General Agreement on Trade in Services (GATS) rules to the delivery of services by electronic means; providing a guideline to determine the likeness of services in the era of digital trade; and backing up an evolutionary approach to interpreting the GATS schedules of commitments. However, the WTO adjudicatory bodies have been reluctant to rely on the principle of technological neutrality, which is referred to as strategic neutrality in this article. This article urges the WTO adjudicatory bodies to abandon their strategically neutral position on technological neutrality immediately. It also explores ways to incorporate the principle of technological neutrality into the world trading system at the bilateral, plurilateral, and multilateral levels.

Law and Information Technologies in Modern Conditions of Globalization

The author considers various aspects of the use of information technologies in the context of globalization in cross-border private law relations. Separately, the issues of determining the law applicable to relations implemented using information technologies (Internet sites, blockchain technologies, mobile applications), the problems of jurisdiction are analyzed. The legal approaches of the Russian Federation, the United States, the EU, and the People's Republic of China are examined. Special attention is given to both the normative legal approaches adopted in these countries, as well as law enforcement practice, decisions and comments of the highest courts. Blockchain technology is analyzed as the most effective information technology that leads to e-commerce processes optimization, ensures the immutability of data in the system and their safe storage and processing. The paper discusses the latest Russian legislation on digital financial assets and digital currency, which can be created based on blockchain technology. It is noted that by recognizing the digital currency as a means of payment, but not recognizing it as a monetary unit, the Russian legislator creates an ambiguous legal field and, in fact, leaves the law enforcement authorities the right to decide on the perception of the digital currency as a specific object of civil rights, sharing it with the concept of a digital financial asset. Through the prism of the influence of the technological environment on the regulation of cross-border private law relations, the principle of technological neutrality is considered. There is a tendency to deviate from the principle of technological neutrality, to develop self-regulatory activities, regulatory mechanisms within the technological environment, to the need to take into account the technology of implementation of relations (which characterizes a particular "state affiliation" of relations) when determining the applicable law, jurisdiction over disputes arising from crossborder relations.

The hybrid smart contract agreement challenge to European electronic signature regulation

Abstract The article investigates the smart contract used in the Initial Coin Offering (ICO) process and its qualification under the typology of form of contract and the EU electronic signature regulation eIDAS.1 ICOs took the globe by storm in 2017 and created a lot of turmoil among the regulators due to a new form of raising funds globally. In addition to their effect on the capital market, another phenomenon that saw a rise in popularity was the smart contract. The smart contract is usually built into the ICO process as a protocol to execute the issue of a token. The article suggests that the contract in the ICO process does not only refer to the smart/contract code in silos but should be considered in the larger context as the so-called hybrid smart contract agreement with the smart contract protocol being merely the execution motor for the issuance of the token. The article qualifies the contract concluded during the ICO process under the general typology of forms of contract with the aim to identify whether the hybrid smart/contract agreement is in electronic form of contract. Some states in the USA and a few Member States in the EU have also introduced smart contract-specific regulation clearly stating that smart contracts are contracts either in electronic or written form. Still, as this is not prevalent in the EU law, the principle of functional equivalence is used to assess whether the signature on a smart contract used in an ICO process is functionally equivalent to the qualified electronic signature under eIDAS. The existence of a qualified electronic signature allows the contract to be qualified as a contract in electronic form equivalent to a paper-form agreement with hand-written signatures. Furthermore, the article investigates whether the centralized trust system of the eIDAS creates an infrastructural bias against the source of trust in case of distributed ledger technology that in itself could be non-compliant with the principle of technology neutrality.

"Hitting the White Ball: The Technology Neutrality Principle and Blockchain-Based Applications"

This article provides a legal analysis model for legislators to employ in order to identify non-compliance with the technology neutrality principle in cases of use of blockchain technology. The principle of technology neutrality is aimed at supporting innovation and competition. The article uses the treatment of an application called CUBER in Estonia as early as in 2014 as an example for such analysis. The CUBER mobile application used blockchain technology to execute payment transactions for goods and services. The article first portrays the challenges that the technology neutrality principle poses on existing regulation. It then explores whether technology discrimination took place against CUBER and how this could have been avoided through compliance with the technology neutrality principle. Through this analysis, the article maps the challenges that all start-ups encounter when initiating the use of a new technology aiming to innovate an existing process.

Globalization and regulatory change: The interplay of laws and technologies in E-commerce in Southeast Asia

Electronic commerce has brought about business and technological changes globally, and these global changes have given rise to major legal reforms across nations. In the fast-changing global digital economy, states need strategies to maintain competitiveness of their markets while simultaneously ensuring the secure and effective use of technologies involved in conducting electronic transactions. This paper examines how the use and recognition of electronic signatures are regulated in Southeast Asia – the region that has shown the most significant growth in global e-commerce in past few years. Based on a comparative analysis of the laws of four representative ASEAN member states – namely Singapore, Thailand, Malaysia, and Vietnam, this paper argues that there is a regional trend towards adopting more liberal and technology-neutral standards for electronic signatures. Electronic signature regulation in Southeast Asia is now built upon limited technological neutrality (or the so-called “two-tiered” approach) as a shared regulatory understanding, but this approach is operationalized differently in each state due to distinctive national contexts. Within the common legal framework, each state has developed its own system of control and management with respect to higher-level signatures (using advanced technologies). The principle of technological neutrality, a concept originally developed for the regulation of technologies in response to the liberalization of telecommunications market, has been the central theme of discussions on the e-transactions policy-making scene. As the author shows, in the process through which states localize the global standards of technological neutrality, ASEAN as a vehicle of regulatory change has played an essential role in translating this principle to the national context.

Decentralised Technology and Technology Neutrality in Legal Rules: An Analysis of De Voogd and Hedqvist

Abstract This article looks at whether the principle of technology neutrality can be applied to the centralised-decentralised scale in a manner similar to its application to the offline-online scale. The analysis is based on two cases of similar circumstances relating to bitcoin exchanges run by early adopters in Estonia and Sweden. The cases exhibit two different ex ante legislative approaches aimed at payments in currencies and the interpretation of the respective legislation by the judiciary in applying these rules to bitcoins and to the activity of exchanging bitcoins. The article examines whether the legal rules applied to the payment infrastructure of currencies were technology neutral and also implemented neutrally or whether, contrary to the principle, there was difference of treatment of decentralised technology outputs – bitcoins – from the centralised technology outputs – legal tender – irrelevant of the functional equivalence of these units of payment.

Blockchain Securities, Insolvency Law and the Sandbox Approach

Blockchain is a new technology that is based on an algorithm which allows participants of an IT network to process, store and share data across multiple points without the need for any intermediary, at least in order to ensure the integrity of the data dealt with. This technology is simplifying financial markets—many organizations are launching initial coin offerings to facilitate the financing of new business ventures; moreover, ‘securities’ that are issued in such a digital form can be bought and sold in the secondary market without the intervention of the traditional intermediaries. However, this use of blockchain could give rise to many problems which, in this article, will be analysed from the prospective of insolvency law. This paper will argue: first, that these problems originate from the fact that the issuance of blockchain securities is creating a divide between the world where securities are issued, offered and sold, and the world where law is enforceable; secondly, that these problems cannot be managed easily because of the lack of an apt point of attack, rather than because of the claim that the principle of technological neutrality should be observed; thirdly, that—under certain conditions—the sandbox approach that is being adopted by the UK financial conduct authority could contribute to directly shaping the platforms in pursuit of regulatory goals.

Online copyright infringement, techno-cultural creations and the copyright-technology nexus

This paper considers how the principle of technology neutrality could be applied in copyright law to inform legislative provisions and court decisions on infringement in the digital environment. It specifically examines Canadian and South African legislative and judicial approaches to user generated content (UGC) and to news aggregation. This discussion encompasses the use of exceptions and limitations to cater for these, and other, online practices. It finds that the Canadian UGC exception was necessitated by the fact that the enumerated purposes of the fair dealing exception do not extend to UGC. Therefore, it recommends the introduction of a UGC exception to South African law, if the current fair dealing exception is retained. In contrast, jurisdictions that have the broader and more flexible fair use exception do not require a specific UGC exception. News aggregation is covered by enumerated fair dealing purposes in South Africa, therefore no legislative amendments are recommended.

ПРАВОВЫЕ ПОДХОДЫ К РЕГУЛИРОВАНИЮ КРИПТОВАЛЮТЫ И ICO В ЗАРУБЕЖНЫХ СТРАНАХ И ЕВРОПЕЙСКОМ СОЮЗЕ

The prerequisites and main trends in the development of the latest financial technologies (FinTech) are considered. The emerging approaches to the legal regulation of ICO and crypto currency in foreign countries and the European Union (EU) are analysed. It is concluded that the legal ways of regulating new phenomena are ambiguous while in the main states adhere to the principle of technological neutrality. In relation to the EU member states, there is a need to comply with the supranational legislation of the European Union. The conclusion about the high level of mobility of legal foundations in the field under investigation is made.

E-Books and a Principle of Technological Neutrality: Should PLR Apply to E-Lending?

Public Lending Right (PLR) and Educational Lending Right (ELR) schemes are remunerating Australian authors and publishers for making available their books in Australian libraries. However, e-books are currently not included under these schemes. With the expansion of the e-book market and e-lending services within Australian libraries, it has been suggested that the Schemes should be technologically neutral and extend to include e-books. After an extensive analysis of the technological neutrality principle, the paper concludes this principle does not pose a legal obligation to extend PLR and ELR to e-books since traditional lending and e-lending are not functionally and economically equivalent services. Nevertheless, such extension could be favourable when taking into account other economic, cultural and political circumstances.

Applying the Principle of Technological Neutrality to State Aid for Network Infrastructures

In the Mediaset case, the lower Court made a key statement upheld by the higher Court on appeal: the lack of technological neutrality of a measure is linked both to the presence and the incompatibility of State aid. Scholarly literature has not yet fully explored the procedural and material impact of this finding, called the ‘decoder doctrine’. This paper aims at asserting the legal nature, content and impact of said doctrine on State aid for network infrastructure development. For this purpose, it explores the emergence, scope and rationales of the technological neutrality principle on which the decoder doctrine relies, and studies its application to State aid targeting broadband and electric vehicle charging infrastructure. This analysis enables (1) an interpretation of the concept of technological neutrality in State aid law based on the Commission’s definitions and the Mediaset findings and (2) an assessment of key decision-making criteria against this benchmark. Keywords: Mediaset; Decoder Doctrine; Network Infrastructures; Broadband; Sustainable Transport; Electrical Mobility.

Money for nothin’ and coal for free: ‘Technology neutrality’ and biomass development under the Flemish tradable green certificate scheme

Recent literature has highlighted the creation of multiple equivalences as an important factor underpinning the rise of market-based mechanisms for environmental regulation. Extending these insights into the field of renewable energy policy, this article focuses on one example of this trend – namely the principle of technology neutrality as applied under the Flemish tradable green certificate scheme – and analyzes the concrete ways in which it has shaped the evolution of the Flemish renewable energy landscape. Concretely, the article shows that technology neutrality played a key role in promoting the uptake of biomass combustion in old coal power plants in Flanders, which led to a number of undesirable outcomes and gave rise to significant opposition. Correcting these shortcomings required a number of policy interventions on the part of the Flemish government that fundamentally moved the scheme away from the principle of technology neutrality and towards a more hybrid RE support system, suggesting that the promotion of technology neutrality was fundamentally misguided. Together with similar experiences from related market-based instruments, this suggests that the promotion of technology neutrality has far-reaching implications for the environmental effectiveness of climate and energy policies. In light of the continued promotion of the principle, the article calls for full recognition of the inherent technological choices that are being made through the promotion of policies that purport to be technology-neutral.

State Aid as a Tool to Achieve Technology Neutrality ∙ Abertis Telecom, SA and Retevisión I, SA v Commission ∙ Case T-541/13 ∙ Annotation by Pablo Ibáñez Colomo

In Abertis (a representative judgment of a saga of similar cases), the General Court dismissed an action for annulment against a Commission decision finding that the measures in support for the deployment of a digital terrestrial television network in Spain amounted to unlawful and incompatible State aid. According to the Commission, the support measures were not granted in accordance with the principle of technology neutrality, insofar as they excluded technologies such as satellite. In addition, it held that the Member State could not invoke the Altmark case law, or Article 106(2) TFEU, insofar as the operators had not been entrusted with a public service mission. This is so in spite of the fact that the Spanish Telecommunications Act explicitly referred to the transmission of broadcasting signals as a service of general economic interest. The analysis of the Commission was, by and large, validated by the General Court. The appeal against the judgment, in this and in similar cases, is currently pending. Keywords: SGEI; Altmark; Technology Neutrality; Networks.

The 2012 Supreme Court Copyright Decisions & Technological Neutrality

Three of the five copyright decisions released concurrently last summer by the Supreme Court of Canada were cases that concerned internet or digital technologies. This article offers a review and analysis of the Entertainment Software and Rogers decisions in connection with the s. 3(1)(f) telecommunication right, and the Bell case with respect to fair dealing under s. 29 of the Copyright Act. The focus is on the effort by the Supreme Court to negate the otherwise troublesome copyright implications for internet technologies by expanding the principle of technological neutrality and, in some instances, adopting a perspective of functional equivalency between digital activities and their real space counterparts.