Which Governance Structure for Law Making Projects Regarding Emerging Technologies?

We are all, more and more, convinced that the major fault lines characteristic of today’s legal systems are the impact of Information Technology (IT), more particularly the emerging (or so-called “disruptive”) technologies, on the law and how the law can contribute to reversing our changing climate. In the Netherlands, but not only there, the latter aspect has drawn quite some attention because of the recent decision by the Netherlands Supreme Court in the “Urgenda case”, demanding the government to reduce the level of greenhouse gases with 25% before the end of 2020.1 The decision seems quite severe, especially in a country where the Constitution forbids the judiciary to decide on the constitutionality of statutes, but at the same time allows that same judiciary to rule on the compatibility of these very statutes with international treaties. The decision brings to the surface the growing tensions within the country’s political system (legislature and executive) and its judiciary. However, except when it comes to privacy protection, no such far-reaching and principled cases seem to have thus far reached Supreme Courts in Europe in the area of IT and law, for example regarding the legal nature of smart contracts (i.e. self-executing computer programmes), replacing more traditional standardised or boilerplate contracts. Although legislation in this area seems to be growing, particularly when looking at the micro-jurisdictions within Europe (Malta, Liechtenstein), still many questions are unanswered and even in states with a beginning of a legislative framework no case law has developed yet.2