In a recent paper, ‘Company Law and Autonomous Systems: A Blueprint for Lawyers, Entrepreneurs, and Regulators’, which I co-authored with Shawn Bayern, Daniel Häusermann, Thomas D Grant, Richard Williams, and Florian Möslein, we show how existing company law can be utilised to bestow legal personality on artificially intelligent and autonomous systems.
Our paper starts from the view that, in discussions of the regulation of artificial intelligence and autonomous systems, private law — specifically, company law — has been neglected as a potential legal and regulatory interface. There are several possibilities for the creation of company structures that might provide functional and adaptive legal ‘housing’ for advanced software, various types of artificial intelligence, and other programmatic systems and organizations (‘autonomous systems’ for ease of reference). Prior work by one of the authors introduced the notion that an operating agreement or private entity constitution (such as a corporation’s charter or a partnership’s operating agreement) can adopt, as the acts of a legal entity, the state or actions of arbitrary physical systems. In light of this, and given the present capacities of existing forms of legal entities, companies of various kinds can serve as a mechanism through which autonomous systems might engage with the legal system.
In our paper we consider the implications of this possibility from a comparative and international perspective. Our goal is to suggest how, under US, German, Swiss and UK law, company law might furnish the functional and adaptive legal ‘housing’ for an autonomous system. In turn, we aim to inform systems designers, regulators, and others who are interested in, encouraged by, or alarmed at the possibility that an autonomous system may ‘inhabit’ a company and thereby gain some of the incidents of legal personality. We do not aim to be normative. Instead, we set out a template suggesting how existing laws might provide a potentially unexpected regulatory framework for autonomous systems, and explore some of the legal consequences of this possibility. These considerations might spur others to consider the relevant provisions of their own national laws with a view to locating similar legal ‘spaces’ that autonomous systems could ‘inhabit.’
One concern that arises when an autonomous system takes on the form of a company is that it may be able to claim constitutional rights. This may be undesirable. Most of the techniques that we develop in the paper also put rules to creative use that were designed solely to govern certain transitional phases in the life cycle of legal entities. Should a creative entrepreneur, for instance, be allowed to drag out the time period the law normally provides in order to wind down companies, merely because this allows the entrepreneur's company to subsist and the artificial intelligence hosted in it to continue to enjoy legal personality? There are also other concerns that policy makers will need to address. For instance, autonomous systems could gain practical influence over human managers and board members. Their sheer usefulness could dull humans and make them complacent, leaving autonomous systems de facto in charge of companies. Programmers might then be alone in exercising real and meaningful influence over autonomous systems and – by extension – over the companies that those systems influence or control. However, current company law has little or nothing to say about programmers or autonomous systems.
Finally, in today’s interconnected world, an entity registered in one jurisdiction may qualify to ‘do business’ in another. Thus, for example, a US LLC might operate in Germany. It is unclear the extent to which jurisdictions will tolerate novel uses of existing foreign business forms. Mutual recognition of business forms across national legal systems would seem to assume familiarity with the forms – and with the functional purposes for which the forms are employed. Harnessing company law to house an autonomous system likely would attract challenges in the jurisdictions where it is attempted – and in other jurisdictions where it might have effects.
Thomas Burri, Prof. Dr. iur. is an Assistant Professor of International Law and European Law at the University of St Gallen, venia legendi, LLM (College of Europe, Bruges).