30. September 2021

Cybergovernance, Blockchain, Profiling, LegalTech, Lawyer Well-Being, eSignature, KPI

The general theme of the 24th International Legal Informatics Symposium (IRIS) 2021 was "Cybergovernance". A closing event was held in Vienna in June 2021. At this event, which also marked his 70th birthday, Rolf H. Weber gave a closing lecture on "Cybergovernance revisited", which we now publish in this issue in written form and supplemented by footnotes. We would like to take this opportunity to congratulate him once again and thank him for his many years of service as editor and author of Jusletter IT.

Several blockchain projects are currently working to move from proof-of-work algorithms to proof-of-stake. Kilian Schärli, Luzius Meisser, and Reto Luthiger take a financial market law approach to the staking of cryptocurrencies.

Fabian Teichmann and Léonard Gerber devote their article to the revision of Liechtenstein's Financial Market Supervision Act, which is particularly relevant with regard to the use of blockchain technology.

In the column "The DPO View", Matthias Glatthaar is dedicated to profiling and provides recommendations for corporate practice.

Our cooperation partner Liquid Legal Institute has produced three more brochures on exciting and current topics, which we publish as e-books here. The Silent Epidemic is dedicated to the mental health of lawyers in times of pandemics, digital transformation and other megatrends. The survey conducted here certainly breaks a taboo. Another brochure addresses the question of how to define key performance indicators (KPI) for legal departments. In the third brochure, LLI has developed a starter kit for e-signatures to make it easier for organizations to move to digital signatures.

The course "LegalTech and its impact on the world of work", conducted by Franz Kummer at the University of St.Gallen, has taken place again. Like last year, we are publishing a selection of the final theses in our "Next Generation" category. Students have been thinking about the topics of Blockchain, Legal Design Thinking, LegalTech, eDiscovery and more. We are pleased to provide Jusletter IT as a venue for new ideas.

We wish you an exciting read!

Philip Hanke
Editor-in-Chief Jusletter IT
Editions Weblaw

Beiträge

Cybergovernance revisited

Rolf H. Weber

Cyberspace has grown out of its infancy. Even if Internet regulations were partly driving into national directions during the last years the chances remain intact that an improved global digital cooperation can be reached. Therefore, further efforts which lead to a strengthened IGF+ until 2025 appear worth.

Finanzmarktrechtliche Einordnung des Stakings von Kryptowährungen

Kilian Schärli

Luzius Meisser

Reto Luthiger

«Staking» is the use of crypto-based assets as a collateral for the purpose of actively participating in a blockchain-based system with decentralized governance. Due to the technical complexity of staking, holders of crypto-based assets often task a competent intermediary to perform the staking on their behalf. The article analyzes the consequences of staking on the separability of the deposited crypto-based assets from the bankruptcy estate in case of a default of the service provider. From that, the financial licenses necessary to offer staking as a service can be derived. The authors conclude that deposited crypto-based assets can be used as a collateral and therefore also staked without harming the separability in case of default. If the crypto-based assets of multiple clients are pooled, professional staking service providers generally require a banking or a fintech license.

La révision de la loi sur la surveillance des marchés financiers du Liechtenstein

Fabian Teichmann

Léonard Gerber

During the adoption of the Blockchain Act of Liechtenstein of the 3. October 2019 (or TVTG), the Financial Market Surveillance Act of 18 June 2004 (or FMAG) was revised encompassing two new core features. Firstly, the extent of the surveillance power of the FMA was clarified as regards to the registration duty imposed on professional service providers linked to tokens and secured systems based on blockchain. Secondly, the FMAG foresees rather light surveillance costs, notably in order to support innovation as well as start-ups offering services related to tokens.

Liquid Legal Institute

The Silent Epidemic | Well-Being and Personal Health of Legal Professionals in Times of Digital Transformation and Social Change

Diane Manz

Roger Strathausen

Jutta Löwe

Bernhard Waltl

Kai Jacob

Dierk Schindler

Massive forces ranging from COVID-19 to digital transformation are changing the world with unprecedented intensity and speed. It feels like our public, private and professional lives will never be the same again. This should make us more aware of other threats lurking in the dark which could be aggravated by the disruption we are facing. The LLI is tackling a sensitive issue that far too long has been a taboo in the legal industry and that now, in times fundamental social change, may turn out to become a silent epidemic: the declining well-being and personal health of lawyers and legal professionals. With the results of our survey we aim to achieve three things: to break the taboo by putting a spotlight on this hot topic, to facilitate conversations by creating a reference point for our community, and to spark ideas on how to tackle the underlying issues.

Data-driven Legal Departments | An Introduction into Metrics and KPIs

Bernhard Waltl

Maik Ebersoll

Jean Obst

Jan Querfurth

Peter Schichl

Dierk Schindler

Maurus Schreyvogel

Nina Stoeckel

Over the past few years, also legal departments saw increasing cost pressure and have been requested to be more efficient while maintaining – if not increasing – their effectiveness. Yet, lawyers are experts in operating with language and typically do not shy away from abstract, qualitative concepts such as «added value». However, transferring such abstract concepts into the realm of numbers is something different and (still) feels uncomfortable for many members of the legal profession. So why should we measure? How do we obtain relevant data? And how do we transform data into information and then into insights?

eSignature | Why and How

Peter Karmann

Rainer Markfort

Lucija Kobal Nakić

Christian Rathgen

Jutta Löwe

Baltasar Cevc

Jan Querfurth

Bernhard Waltl

Lutz Zimmer

Dario Dill

Kai Jacob

This whitepaper aims to provide you with a first overview and a summary of the background of eSignature. We would like to put you in the position of better understanding the benefits and use cases of eSignature and what you should be aware of when implementing eSignature solutions. Additionally, we created an eSignature starter kit which enables you to take the first steps while avoiding pitfalls for the long run.

The DPO View

Keine Angst vor Profiling

Matthias Glatthaar

Next Generation

Einfluss der künstlichen Intelligenz auf die Soft Skills in der anwaltlichen Tätigkeit

Sara Fischer

As the presence of artificial intelligence increases in the legal profession, soft skills are becoming more important, because automation cannot replace them and human skills increasingly serve as a differentiating criteria between job applicants. The ability to work in a team is the most significant of these skills, as the skill has been promoted by employers and educational institutions for decades and is the most common skill requirement in job descriptions today. Creativity and emotional intelligence are also considered important. In job advertisements, however, these are not yet among the most sought-after soft skills and are thus not explicitly required of future employees. Since soft skills are interdependent and hardly measurable, both the development and the assessment of these skills are considered to be difficult, which is why there is a discrepancy between supply and demand in regard to soft skills.

Ein Chatbot als Rechtsberater – ein haftungsrechtlicher Albtraum für den Betreiber?

Michael Krähenbühl

In recent times, a new type of legal service has reached the market, offering automated legal advice via a chatbot. Therefore, this paper seeks to determine under which circumstances a chatbot operator may be held accountable, when his chatbot is causing damages by offering false legal advice. On one hand, the research focuses on a type of chatbot, which has predefined working patterns, and therefore, offering a foreseeable advice. This type of chatbot does not pose any new challenges under swiss liability law. On the other hand, the research focuses on a chatbot, which operates (at least partly) with a system, which can be described as artificial intelligent. This type of system may cause damages, which can be traced back to their self-dynamic development. Under swiss civil law, artificial intelligence has by itself no legal entity according to Art. 11 Swiss Civil Code. In case of any damages, caused by false legal advice appointed by a system, which is artificial intelligent, an attribution norm is required, which attributes the damages to the chatbot operator. The author follows a doctrine, which suggests that this could be achieved through the analogous application of Art. 101 Swiss Code of Obligations or Art. 55 Swiss Code of Obligations.

Wer soll entscheiden: Maschine oder Mensch?

Claire Dentand

The automation of an individual decision restricts the right to be heard in some respects, which is why there is a need for regulation. In Article 19 of the E-DSG, the Swiss legislator allows automated individual decisions in principle, unlike the EU. The different ways in which Switzerland and the EU deal with automation of decisions are part of this paper. It also discusses the extent to which the automated individual decision is compatible with aspects of the right to be heard.

Die Vorhersage von Gerichtsurteilen des EGMR durch Machine Learning – eine Fallstudie

Janice Deborah Kowalski

Nowadays machine learning methods are being used in several areas. These methods are also gaining in importance in legal practice. This paper studies the prediction of court judgments of the European Court of Human Rights using machine learning. The method of natural language processing in combination with classification methods is examined for its predictive ability. Ultimately this article shows how machine learning could be used in the Swiss legal system to predict court decisions.

Vom Wertpapier zum Registerwertrecht – die Digitalisierung von Finanzinstrumenten aus einer funktionalen Perspektive

Jan Isler

With the adaptation of federal law in the area of distributed ledger technology, the framework for tokenised issuance and transfer of financial instruments was created. This article focuses on the functional aspects of this change and also ventures a look back. Thus, it allows a classification of the digitalisation of financial instruments.

Blockchain als Lösung für eine effektive und fälschungssichere Speicherung von Diplomen

Raphaël Schwab

Technological progress, and in particular blockchain technology, brings countless new application opportunities. This paper focuses on the legal challenge of a blockchain-based solution for saving, usage and verification of university certificates. In particular, privacy aspects, the implementation and the compliance with current university legislation were addressed.

eDiscovery

Valery Bamberger

The amount of data that companies generate and store is growing every day. (Digital) data play a central role, especially in internal investigations and legal cases. Companies such as corporations or law firms are increasingly turning to so-called eDiscovery experts to collect, determine and analyze the relevant data. This paper deals with eDiscovery, its origin and today’s meaning for data processing and evaluation. Furthermore, through the «Electronic Discovery Reference Model» (EDRM), the technology-based procedures of eDiscovery are examined and researched in detail, whereby individual eDiscovery software solutions are discussed and their advantages for eDiscovery specialists and lawyers are highlighted. The work also illustrates challenges for eDiscovery processes in Switzerland.

Legal Tech im Arbeitsrecht

Lina Eisenhut

In the area of legal tech for private individuals, this paper examines the extent to which the combination of technology and law can lead to improved information possibilities regarding labor law and therefore increase employee protection. Specific examples show how employees can more easily find out about their employment rights by communicating with chatbots and how they can better defend themselves against violations with the help of document automation. On the one hand, suggestions for Switzerland are given, where the use of legal tech would lead in particular to an improvement in user-friendliness, and on the other hand, possible uses abroad are shown, where this could enable access to justice in general and lead to significant social and economic consequences in the long term.

Document Automation

Raphaela Roth

When one thinks of the core activities of a lawyer, the first thing that comes to mind is probably the drafting of pleadings or the drawing up of contracts. These are activities in which the lawyer still does most of the brainwork. Due to numerous applications for document automation, which are already available on the emerging Swiss market, legal services are increasingly perceived as a commodity. In light of these developments, this paper addresses the question of whether document automation threatens the traditional status of the lawyer or rather offers opportunities for the profession.

Legal Design Thinking – Skribble

Christoph Lanter

The development of simple and intuitive visualizations as well as the simplification of legal content is at the center of the «Legal Design Thinking» method approach. The following paper examines the methodological approach on the basis of the TechTrust start-up Skribble, analogous – whereby in correspondence to the «Legal Design Thinking» approach, the services of the start-up in the area of electronic signatures are viewed through a legal, business and technical lens. The basis for the aforementioned method is the legal context of electronic signatures in Switzerland and Europe. Furthermore, based on an analysis of «Skribble for lawyers», the application areas of tenancy law, powers of attorney and e-government are described. Finally, the interdisciplinary analysis shows that Skribble offers a design-, technology- and legal-oriented solution approach.

News

Bundesrat genehmigt öffentlich-rechtliche Rahmenvereinbarung über die Digitale Verwaltung Schweiz

Jurius

At its meeting on 24 September 2021, the Federal Council approved the public-law framework agreement on Digital Public Services Switzerland. The framework agreement regulates the cooperation between the Confederation and the cantons in the area of the digital transformation of their administrations.

Der Bund baut ein «Kompetenznetzwerk Künstliche Intelligenz» auf

Jurius

Artificial intelligence (AI) is one of the pioneering technologies concerning the digital future and also shows great potential for the public administration. At its meeting on 25 August 2021, the Federal Council decided to establish a Competence Network for artificial intelligence. The associated office will be located at the Federal Statistical Office (FSO).

Lage der Union: Kommission schlägt einen Weg in die digitale Dekade zur Verwirklichung des digitalen Wandels in der EU bis 2030 vor

Jurius

On 15 september 2021, the Commission proposed a Path to the Digital Decade, a concrete plan to achieve the digital transformation of our society and economy by 2030. The proposed Path to the Digital Decade will translate the EUʼs digital ambitions for 2030 into a concrete delivery mechanism. It will set up a governance framework based on an annual cooperation mechanism with Member States to reach the 2030 Digital Decade targets at Union level in the areas of digital skills, digital infrastructures, digitalisation of businesses and public services. It also aims to identify and implement large-scale digital projects involving the Commission and the Member States.

Zulässigkeit eines digitalen Vertragsdokumentengenerators

Jurius

Bundesgerichtshof (D) – The First Civil Panel of the Federal Court of Justice, which is responsible, inter alia, for competition law, has ruled that a specialised legal publisher may operate a digital generator for legal documents with which contractual documents are generated on the basis of a system of questions and answers and a collection of stored text modules.

SIX-Digitalbörse erhält Genehmigung von der Finma

Jurius

The planned SIX digital exchange can finally start. After numerous postponements, the go-ahead has now been given by Finma.

Bundesrat bricht Projekt für einen zentralen Nachweis amtlicher Dokumente ab

Jurius

Der Bundesrat hat an seiner Sitzung vom 8. September 2021 beschlossen auf die Einführung eines zentralen Nachweises amtlicher Dokumente zu verzichten. Um die Information über amtliche Dokumente zu verbessern, wird der Eidgenössische Datenschutzbeauftragte eine Liste mit Kontaktangaben der Verwaltungseinheiten publizieren. So soll der Zugang zu amtlichen Dokumenten vereinfacht werden.

Erfolgreiches Bug Bounty-Pilotprojekt in der Bundesverwaltung

Jurius

From 10 to 21 May 2021, the National Cyber Security Centre (NCSC) conducted a Bug Bounty pilot project in cooperation with Bug Bounty Switzerland GmbH, the Federal Department of Foreign Affairs (FDFA) and the Parliamentary Services. The project was very successful and the gathered knowledge is to be implemented into further Bug Bounty programmes in the federal administration.