This chapter looks beyond the novelty of self-executing ‘smart contracts’ in blockchain networks and explores developments against the background fact that commercial parties have, for centuries, used documentary credit to simulate autonomous performance. Blockchain-based smart contracts and documentary credit share three core functionalities which are essential to any effective autonomous performance, analogue or digital—they both (i) act through internalized media of exchange; (ii) operate as closed systems; and (iii) provide means of securing sufficient resources to guarantee contractual performance. Using these three functionalities as a framework, this chapter conducts a comparative analysis of mechanisms for effecting autonomous contractual performance in a commercial setting. From this comparison, a few hypotheses are drawn regarding the potential areas where smart contract technology is more likely to find fruitful application. In particular, the chapter considers potential limitations to applying smart contracts to scenarios beyond digital asset transfers, how dispute resolution mechanisms should be designed to complement (rather impair) the autonomous nature of contractual performance under smart contracts, and potential capital cost implications which might arise in some cases when parties seek to replace human intermediaries with smart contracts.
Advances in technology have resulted in a fast changing landscape for construction contracts. Lawyers struggle to keep up with the pace of innovation and the need to provide legal solutions and accommodate new approaches. Building Information Modelling (BIM) has become part of the common parlance in construction notwithstanding limited evidence of its impact on the ground... Intelligent contracts appear as a logical extension to BIM whereby the contractual performance itself becomes automated. However, intelligent contracts work best where they are short term or are of instantaneous effect. This is at odds with the complicated and long-running nature of construction projects. Further, storage constraints, compatibility and reliability issues together with confidentiality and the long term nature of distributed ledgers pose additional problems. The aim of this paper is to present the debate about what could be achieved in the construction industry by the adoption of intelligent contracts. An on-line forum provided the secondary data on which the discussion is based. The objectives are to introduce aspects of technological advancement within commerce generally and to discuss their application in construction. The hypothesis advanced is that certain aspects of the construction contract cannot be fully intelligent and the best that can be achieved in the short to medium term is a semi-automated position. Further, intelligent contracts should be viewed as part of the BIM-led revolution in construction and not separate from it. The recommendation is that incremental advances such as the coding of project management and contract administration data be targeted to provide improved operational efficiency and value savings.
Long Finance identifies an appetite for ‘Smart Contracts’ in wholesale insurance. Sponsored by the London Market Group and conducted by Z/Yen, this research shows there are exciting prospects for the use of smart contracts in wholesale insurance*. The research included interviews with brokers, insurers, reinsurers, regulators and trade bodies from across the sector, together with discussions with technical experts.
Smart contracts translate legal contract terms directly into executable computer code within a business process. This creates a rigorous link between the legal contract and its operational implementation. By enabling closer integration between back office, business areas, and negotiation of external contractual agreements, smart contracts can improve efficiency, reduce errors, and improve maintainability as business, regulatory, and contractual environments change.
The report identifies five broad areas where smart contracts could be applied in wholesale insurance: Process, Product, Portal, Performance, and Privacy. Processes in wholesale insurance are particularly complex, with complicated contracts managed through a network of clients, brokers, insurers, reinsurers, external providers such as loss adjusters, and central market organisations, often crossing and recrossing national boundaries. Smart contracts offer the possibility of making processes more transparent and maintainable, reducing the need for manual intervention and reducing costs and error rates. Smart contracts could also support new product features or allow new classes of products where the risk is defined using complex analysis of ‘big data’. They could support new automated distributed channels for insurers through the use of internet portals, making it economic to transact more standardised products with smaller clients. By guaranteeing confidentiality of granular data, they could facilitate sharing of aggregate data to provide aggregated industry data and indices. They could reduce barriers to sharing They could also be used in the analysis and management of risk and claims, improving overall performance of insurers. Privacy legislation is an important area where smart contracts could help provide ‘smart compliance’ – linking back office processes to the explicit wording of statute and regulation.
The report highlights examples of where individual firms, ‘coalitions of the willing’, or cross market initiatives, could drive specific smart contract applications to provide business benefits.
The following table summarises the potential benefits of each of these five areas, both to Market firms and to clients. The benefits of cost, accuracy, and speed accrue directly to the Market, although the net effects should include at least some reduction of premium costs to the client. Oversight of the market should also be simpler and more effective with better information. ‘Risk management’ refers particularly to preventing losses or mitigating the impact of losses which do occur; it should be a direct benefit both to the firms and to the client. ‘Client facility’ means that the client has the ability to purchase a policy with capabilities or at a price that was not previously available.
The large number of use cases in different areas which we found for STP and smart contracts indicates that these are technologies which could have a strong impact on the London Market over the next few years, and they should be part of the strategic debate within firms and at Market level, such as:
Commercial vehicle fleet insurance with access to client data;
Cybersecurity policy with access to client systems;
Hull insurance with access to telemetry;
Geolocation of shipping containers;
‘Follower syndicate’;
Parametric insurance;
ILWs;
Insuring intangibles with loss defined from Big Data;
War risk on demand;
Generator cover on demand;
Individualised insurance for car hire;
Cyber index and ILS.
There is no simple way to progress smart contracts, given the multi-party nature of the Market, and this report recognises that a core recommendation is that smart contracts remain on the strategic agenda for the Market as a whole and for individual firms for the foreseeable future. Smart contracts will be important for wholesale insurance and need to be part of future discussions and gain the attention needed to be built appropriately into future Market processing architecture. We suggest further development of the ideas surrounding:
‘follower syndicate’ proposal for applying smart contracts;
opportunity for smart contracts in implementing STP for settling payments;
smart contracts for contract wordings;
governance structure for sharing data that feeds smart contracts;
geolocation information feeding smart contracts.
Efforts of various international institutions have supported implementation of national/regional single windows and the next logical step would be to internationalize and make them interoperable to allow for greater collaborative information sharing. The purpose of this paper is to review the legal framework necessary for implementing international single window environment (ISWE) and, in that context, examine particular economic and financial aspects of the current developments. The discussion shows that ISWE is desirable as it may contribute towards creating a level playing field for SMEs participating in global supply chains. The paper discusses ASEAN Single Window to identify prospects and challenges, and highlight the legal and economic viability of interoperability. ASW is examined from transaction cost and information asymmetry theory perspectives to provide a methodology for conducting empirical analysis at country-level. Based on the findings the paper argues that full potential of ISWE can be realised through integration of transport and commercial requirements thereby improving G2G, B2G and B2B information flows. Nevertheless, such integration would require the ability to capture the complex relationships between various transport actors from legal and technical standpoints. To illustrate this legal complexity from transport and e-commerce law angle, the disadvantageous position of SMEs vis-Ã -vis use of electronic bills of lading and access to supply chain finance is examined. A critical analysis of selected legal texts is made through the lens of recent developments such as distributed ledger and cloud technologies to suggest solutions for SMEs. The conclusion highlights that transport and commercial requirements in the ISWE has to be incorporated through laws made for e-commerce and not through a piecemeal approach that replicate the functions of paper documents in an electronic environment.
The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox. First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed fact but also form a disbelief, or a belief in the fact’s falsity. At the close of evidence, the standard of proof requires only comparing belief and disbelief. For example, the civil standard, rather than asking whether a fact more likely than not happened according to traditional probability theory, asks whether the factfinder believes the fact more than the factfinder believes that the fact did not happen. The burdened party need not push proof above 50% by dispelling the phantoms of every possibility, while the opponent need not generate a competing version of truth but can instead rely on denial to demand that the burdened party generate a belief.Second, belief and disbelief being nonadditive partial truths, the mathematical result is that one cannot combine beliefs by traditional probability theory, as by using the product rule designed for conjunction of betting odds. Instead, one must use multivalent logic, including its rule that conjoined likelihood equals the likelihood of the least likely element. Linking the elements in a chain tells a story that is as likely as its weakest link. Consequently, if each element of a claim or defense passes the standard of proof, the conjunction of elements will pass the standard of proof. The conjunction paradox thus vaporizes for factfinding, just as the law has always maintained. The law has found the way to decide in accord with our best knowledge of the facts.
The paper seeks to broaden the legal studies on the sea loan by an analysis of the western legal tradition. It undertakes an attempt to find out whether the Roman concept of the sea loan is applicable nowadays. The revival of an ancient solution is more plausible thanks to the idea of the Project Finance and the ongoing process of the decodification of private law. The ancient legal institution of pecunia traiecticia and the modern idea of the Project Finance are good examples of the legal solutions that existed or exist outside the codified legal structure. A broad insight into the history of the sea loan shows how many different contracts were developed under the influence of the pecunia traiecticia. It was a fact in Roman law, in ius commune and in the common law tradition. The vivid development of contractual agreements concerning risky ventures: both on sea and on land was stopped, however, by the process of codification and by the rise of statutory liens, and insurance contracts. The market of risky investments has started to present a challenge to the process of codification once again in the 20th and 21st century. It has been driven by many soft law regulations and uncodified practical solutions. One of them is Project Finance that today seems to be the legal regulation that is the closest to the Roman sea loan. It is an uncodified way to finance and organize risky investments. The significant decentralization of legal systems in all their dimensions, or even in their breakdown into the independent systems makes the revival of pecunia traiecticia more plausible. It can be a useful, less risky alternative to the instruments of speculative investment, e.g. options contracts, forward contracts, hedge contracts, and a less complicated contract than a set of instruments used in the Project Finance. Flexibility of legal solutions used in the risky ventures, variety of legal sources and the openness to the legal tradition could make contemporary legal systems more just and effective than in the era of codification.
Million of dollars are moved worldwide by electronic contracting daily, obviously its legal regulation has been the subject of considerable debates within the contemporary commercial and procedural law. It is not only about analyzing the substantial perspective of electronic contract, but also the possibility of its demand and effectiveness in procedural stages. This article analyzes the principles that impact electronic contracting, with its own jurisprudential and normative development in the Colombian context; this requires a brief overview about the importance of the principles in law and their functions, secondly, an introduction to the phenomenon of electronic contracting, and finally with the detailed study of the principles. Later it will be analyzed its application in bitcoins.
"The article analyzes the potential uses of cryptocurrency as collateral in Article 9 secured transactions. At present, there is no clear guidance as to what status, if any, cryptocurrency has as collateral under Article 9. This paper briefly defines cryptocurrency, explains how it functions in its various forms, and shows why it would behoove lenders to utilize cryptocurrency as collateral. The current regulatory efforts over cryptocurrency are discussed to provide some context, through which the proposed actions and revisions of Article 9 are viewed. Finally, this paper recommends how cryptocurrency can be used as collateral under Article 9 under the current system, suggests possible revisions or explanatory notes which can be added to Article 9 to provide clearer guidance for policymakers and lenders alike."
Notarial archives were one of the richest sources of new knowledge about early modern continental European society to be discovered by twentieth-century historians.1 In areas influenced by Roman law even people who could not write or read themselves went to notaries; the notaries’ archives therefore provided unprecedented access to the social and economic life of the past. Only recently, however, have scholars begun to examine the nature of the notarial record and to ask what made it so ubiquitous and what its relation was to the rest of the proliferating documentation of the early modern era.2 Italians of the Middle Ages invented notaries and their unique brand of powerful writing, and notarial records in Italy bear the unmistakable marks of medieval Italy’s commercial dynamism and political fragmentation. Papal Rome, which had followed rather than led these early developments, was able to catch up in the early modern period. Indeed, the Roman case illustrates especially well the tensions inherent in this special form of writing and the changing economic and political forces that shaped its preservation or loss. Although scribes producing official records had existed in many ancient societies, what made the medieval Italian notary unique was that the documents he drafted were a superior form of proof in a court of law. Medieval jurists drew a distinction between writing by authorized individuals, such as notaries or court recorders (cancellieri), which they called public writing (scriptura publica), and the written transactions of private persons (scriptura privata). At the same time, the rising city states of northern and central Italy privileged public writing by declaring it the equivalent of two witnesses, which meant that it met the standard of a ‘full proof’.3 Growing urban economies with few institutional supports for commerce turned to the written contract or testament, backed up by the threat of litigation, as a particularly desirable means of enforcing business compacts or dictating the disposition of property by the dying. Authorized writers who could draw up such agreements and endow them with public credibility (publica fides) were useful to them. This is the context in which the notary emerged as a professional writer in medieval Italy. From the beginning there was an odd mixture of public and private — if these terms can be applied to pre-modern realities — in the way that the notary was defined. Not unlike the draper or cobbler, he was a private individual who had to earn his living, but instead of cloth or shoes the wares he sold were believable documents. By law what he wrote had a kind of trustworthiness that no other writing could match, but he made a living by selling it. The same hand that created authoritative documents stretched out to receive payment for them, not once but repeatedly. The professionals that medieval Italian jurists and cities had endowed with public fides operated as entrepreneurs seeking business from clients and salaries as court recorders. This hybrid physiognomy meant that the products of the notary’s pen had a peculiar character as commodities. Customers did not necessarily take a document away with them; they paid the notary for his services, but expected him to preserve the record of their transaction. His clients’ records were considered a business asset belonging to the notary from which he could continue to earn fees by making copies. Yet this was a type of asset about which the city could make laws: to set its price, dictate its forms or ensure its preservation. The dual nature of the notarial document as a legally authorized kind of writing and a source of income for the notary played a crucial role in the history of Italian, and particularly Roman, notarial archives. The institutions that might apply external pressure to safeguard notarial records in late medieval Italy tended to be of two kinds with two different preservation models: city governments (public registry model) or local notarial organizations (professional model).4 Over the course of the early modern period the emerging regional states also began to play a role. Whether held by government or profession, questions immediately arose about which documents should be kept and about the modalities of recording them. Notaries produced various types of records, contracts and wills for private customers and judicial acts for government officials and tribunals. Which should be preserved and how should they be accessed? Was it necessary to retain only the acts of notaries who had died without heirs in the profession or those of all deceased notaries? Or should all notarial writing be captured in an ongoing way, not just the volumes that might go astray due to a notary’s death? If so, how could the privacy of these transactions be safeguarded, and could the public fisc draw some profit, or at least cover its costs, from the business the notaries were transcribing? Where preservation focused on what should happen to notarial acts after the death of the notary who had drawn them up, regulations varied strikingly. In Milan in 1396 the notarial college demanded that they go to a fellow member, whereas in Piedmont in 1430 the prince required that they be given to a son or neighbouring notary. Where the aim was to keep track of, and also to tax, current valuable property exchanges, there was more homogeneity. In 1265, Bologna was the first Italian city to establish a public registry of such notarial acts, and this option spread widely among the towns of the Po Valley in the thirteenth and fourteenth centuries. In this scenario scribes employed by the government copied the key features of the agreements into a set of official registers, while the notaries retained ownership and possession of the original documents.5 According to Marino Berengo, regardless of whether legislation targeted the acts of dead or living notaries, it was the nature of the local political regime that dictated concern about their preservation.6 Merchant-dominated city republics were much more likely to care about what happened to notarial documents than princely regimes with a strong feudal class. Politics might even render local elites suspicious of the ruler’s efforts to establish notarial archives, as in sixteenth-century Naples where citizens first requested the registry and then rejected it for fear that it would give their Spanish king too much information about their wealth. The Capitoline hill, centre of civic government in Rome, was the focus of the judicial work of the Capitoline notaries and the site of their archive. Open Access Image from the Davison Art Centre, Wesleyan University, Middletown, Connecticut. The papacy of course had its own rules for the notaries of the papal curia. The deepening of this divided system of governance, and multiplication of types of notaries, intensified in the 1390s after the popes returned to Rome. They increased the number of jurisdictions and made them more exclusive than they had been before. By the fifteenth century Rome was well on its way to a tripartite system of tribunals (each with civil and criminal powers): curial, ecclesiastical and lay (Capitoline).9 No single authority controlled the Roman notaries who practised in these courts, and the notaries themselves never constituted a closed corporation, as occurred in most northern and central Italian cities. Representing initially all the notaries and, after 1507, those working for the municipality and for lay citizens, was a loose body called the college of city notaries [collegium notarii urbis].10 Fragmented jurisdictions and an open notarial profession had had baleful effects on the preservation of notarial documents in Rome.11 The college of city notaries made the first short-lived intervention to halt the dispersion. In 1446 it ordered the heirs of notaries who were not members of the profession themselves to bring their volumes (protocols) to the church of Santa Maria in Aracoeli to be kept in locked chests, a regulation that was rescinded in 1494.12 Going beyond the traditional method of enforcement by threat of fines it also ordered living notaries to exhibit their properly labelled protocols annually to college officials.13 Laudable as it was, storing papers in locked chests could scarcely be described as an archival vision. The Renaissance papacy made the first effort to create an actual notarial archive, the Archivio of the Roman Curia. It was a typically grandiose gesture by Pope Julius II (1503–13), and it showed that the popes were going to their own it to document preservation as to so much Julius made the role by selling notarial but he features of the public registry on of his Pope Julius created and up for notarial this new of the of of the Roman he it the of recording the acts of all notaries in the and in the city in a By with a public registry the to notarial archives by all early modern Julius was in its to all the between notaries working for the papal and citizens that had been by his and he to all types of notarial writing, business acts and judicial acts least from papal of notaries, living and the for his and the was more the fear that the of notaries working for the would take their volumes with them they returned to their The of legislation was even more was in his of notaries, the who were with the Capitoline was a in the new college made for the papal but it was not notaries who them, to the of all this notarial business had to be an to the same Over — and therefore the of acts — The by the Archivio of the Roman was a few of It had only a few at the it was by a new papal archive, the Archivio in of the legislation of was more By up a notarial for notaries the papacy had a into the profession, and created a more for notaries and This working for the court and lay a with the and to be as the rather than it was no that it was the that the effort to preserve notarial records by the Archivio in the political is By the century notarial records was a of in the that was the did not in with the papacy the same its new showed that it to keep with its by the same The Archivio targeted the same documents that the notarial college had first to in 1446 — the protocols of deceased city can only read this as a that the had heirs of notaries did not with the to them The for this for heirs into up the notarial records in their possession and for to keep them and an to The of the new was much than that of Julius Archivio of the Roman it only to those protocols that might go on a notary’s but the of its were more locked with the dead notary’s would not only the documents in but would also safeguard the of heirs to fees from made from their a regulation was as an to and it was, for the Archivio to a volumes it was by papal legislation of that even it no had a to the protocols of deceased notaries, it had to preserve those it This would bring a between the notaries and their the but by that — more than a century — the papacy had to the by notaries and their documents in Rome. The papacy of was a for the Capitoline notaries, as it their open college into a closed of it had on the notaries’ documents. This was in was the first to the of public notarial archives the Papal he to a private he the two Rome and they had some kind of notarial archives It was not that a Pope on Rome the of a notarial archive, an unlike Julius would the between and Capitoline notaries and also up the papers of all other notaries in the this he a of and his it the Archivio from a he had early followed an into a in the Roman curia. It have been the of the of who had a notarial in that the of a notarial for The however, were to the cloth of Roman realities where the most notarial had been from the papacy the period to in the Archivio to not of a number of notarial of property and on It required notaries to bring these to the new and an In to the of the notaries who had their the Archivio would give citizens the to out which notary had drawn up the they but not to have a made of it. Customers had to the of that notary to for the that would in The Archivio also of the of or private notaries who practised in Rome, on a them to a for the first and for a as the for their In a also the the kept of the in the of the rather than it out as had he ordered the of notarial archives in the Papal a of the as the or of the and it the of his and of he made This powerful was not by a In to the new the the of notaries to the of one of their members for a of had been the of Julius archival and to the was not more than a some of his for the new archive, it and it out to a private this individual went fees did not cover his This have been an early that were not in as they were In to make an of the notarial to for copies. he so it would have been a in which had on Although he authority to to an official in there is no that the followed on the threat of It was not after death in and the of the from the of that the Archivio In Pope his for the and the rules about payment to the of notaries to bring in of wills and contracts and to a new regulations the to the notaries’ paid the to the Archivio which was on their while the notaries the they were The returned to traditional means of by the of This system kept the but at a the had no to make notaries in their and many did that the did not of notarial by Pope Indeed, this was only one of in a of the profession, the first of its kind in Rome. on by a between the and the Capitoline notaries where to the Archivio the authorized an into Roman notarial archives and an by of the papal and Capitoline notaries The of acts that had not been copied and to the Archivio of wills that had never been and loose papers and volumes of in the Archivio They also discovered that of papal notaries had the archival legislation had an unprecedented in the actual of the two notarial archives, but in the his was It was to the rules and to it did more than as in the case of the Archivio where papal officials the Capitoline notaries’ that they the to read the in the and protocols and them to of Although a some there had been in for the Archivio did not the effort in the and did not establish of the The of this should If notaries were by public and if public archives held their how could such a as a private notarial even In the notary was a The of the notary’s meant that he the between the and the The that medieval made with Italian notaries had a on how they kept their It the profession the to fees not only at the of the original but also at an or of the original document was This was a or to a would be and only notary or his held the same record in his in the notary’s the of the It also to that clients a public of one of their own or one of their or acts, they the of the the notary or the notary’s a for the of it and of a the law that notarial records were in Rome it did not their to with them they Although they could be protocols were not to be sold or The number of medieval protocols in Rome that enforcement of these was in the protocols themselves as the of notarial clients made a of recording the of the notary and the of the one they or their might to the original notary’s and an official of the The nature of notarial acts shaped their preservation in different on whether the profession was open to one and all the first of in the or to closed of of this however, the whether they were the notarial the or the showed for the of of notarial were they that they made no to them in a public at as have the fifteenth It was only then that Rome its first intervention to these which was to those that had into the of or who were not this intervention was short-lived well have had to with the that storing them in locked chests in a church did not to of the of heirs to fees from those same In the Archivio in the city went to to heirs that their property would be and even it was no in their Although their was to the volumes of notaries who had died without heirs in the profession, they could not even those without and belonging to notaries even these efforts at The character of notarial writing in turned the Capitoline notaries’ into which he to and sold for the notaries them, this of professionals a closed of from their archival as the Capitoline they were to the civil of the Capitoline court for clients’ litigation, but to all their other as the notarial acts they produced no to them but to their was the selling he a notarial on the The was the to fees for judicial business at the Capitoline not a notarial all other in Rome, were meant and with for a few of these were likely to be notaries, the authorized the of a new the college of notaries of the Capitoline court to actual notaries who as would the of would then make individual contracts with in for a they would them with and, the documents of the In the notarial college with the papacy to some of the that to a that increased their commercial as well as their In for its to a to the the college the for to or Capitoline notarial rather than them to the papal Although this made them a more than notarial it also and them as forms of In it made it even to who the The the of a Capitoline and the to a in a Capitoline the which notaries in Rome, a of privileged and the rest of the profession to with them or to to as The Capitoline notaries at that for scribes who them in their and of the however, the economic of the Capitoline notaries were more than they might The of after the of the Capitoline notaries who could not or who were not to an At the of the were who held that were at the were those who a of an just its from a of these — or — could also be by of notaries, with or with In and however, there was no that the by would be and, did not cover costs, and were an forms of property in early modern Rome were and most were the notarial was the to which the that it into were to Although led the way, the popes too were about how notaries should write and keep their at the same that they were selling notarial for regulations to whether they targeted business acts or judicial acts or but aim at especially the between and in legislation about contracts the to create a a of the to all of these annually into protocols were and to an of at the beginning of By what papal notarial writing in judicial particularly in civil was the of to bring their to court rather than to In a that their to make to the popes economies on notaries in to the of civil The two that the among the Capitoline notaries, in by were the of the for notarial acts and the of to the same as public as the of judicial the of fees for notarial with new Although the of notarial acts was not necessarily its the of regulation did have effects on document preservation. without new of to have in the which that loose contracts or wills did not go the rules created new of access among Indeed, that the in the be and that with the of the made it for clients to their records they the notary. they did not even have to to at first public notarial in the forces of and judicial were to create notarial archives. protocols and volumes began to in the that the of notarial drew up a new They were the most and their increased with the of or new volumes of business acts and at least one of judicial acts a in most Capitoline and to the spread of these new archival among the Capitoline notaries in the early of notarial made it in the contracts they wrote that for the papers lay with the They not only that notaries with legislation on and their acts but also that they never the The between and notaries meant that to their could who would not only their but also their which was to in In to their to the of the Capitoline notaries were to the of their have clients could the notary’s to his protocols or his records of judicial This access an unmistakable on notarial It was not of for a to his notary to the Roman criminal if one of his documents in a of was from the The was not but a of public In the of to the of legislation on notarial writing, clients themselves provided a of The papal of notarial archives and to draw up a on the of public The demanded that notaries in of the volumes in their In to the that many documents were in the Archivio and that of had never been turned into the Archivio the of protocols going to the late century in the Capitoline Although they for not of notarial acts to the Archivio they had few about their of the The that notaries produced in the of an of the which all notarial records in Rome were never on such a with a unique of what documents existed at that to with what the archives the Capitoline notaries, the college and the most likely to be out by city the is The preservation of the protocols is the original contracts and wills made between the that the were first sold in and the of have to They form the of the volumes in the archival as the in Archivio what notaries in early modern Rome did would be for that the could be in those of They would be however, or at least The also the of a archive, the judicial acts of the Capitoline notaries, the records of litigation, and to or or in the in they have all but According to the for between and the notarial of produced volumes of the record of all the judicial but only have which were to be kept in volumes of their in contracts and wills have they had to notaries who fees from them for no one was in for of or acts had no life as and between the early and the late or of be the key to so many early modern citizens notarial services, not only notaries the of civil but acts up than other in If a had that a given property might be or he was to that to have a notary draw up, and the The between and notarial records is to the of these but it is a that is all but in the Roman archives than those in the cities of northern and central Roman did not to notarial the early modern period. they did so, notarial archives emerged as a site of political between city and which was by the a of legislation and the of new notarial archives, however, governments in Rome were not able to notarial documents or could notaries themselves be on for this the that what them from other writers was their archival the wares they sold had no they had the original in their It was the early modern of a new form of the notarial with its which the most means of preservation. In this new regime of notarial backed up by civil the that notarial acts would be however, it was the documents that had the to that were the most likely to
Introduction For this paper Mobile Geolocation will be used to describe the determination of the spatial location of a personal mobile communications device from the signals it emits. The signals may be analyzed either in the device or in other locations. The phrase ”location based services” is often used to describe the processes used for geolocation. Geolocation may involve both retrieving identification and locational data generated by the mobile device, or interpretation of the signal in relation to receiving stations. Mobile Geolocation has its roots in the work of Robert Watson-Watt and High Frequency Direction Finding. HF/DF was developed originally in the 1920s to track lightning and later adapted to track German submarines and aircraft transmissions by virtually instantaneous triangulation using a small antenna and sophisticated electronics. However such technology did not automatically give the identity of the source. GPS systems developed in the 1980s allowed the receiver to calculate its position by analysis of transmissions from special satellites. However GPs receivers did not routinely broadcast their location. Cellular telephones developed in the 19990s to create portable communication devices. These devices “identified themselves” to the cellular towers at all times when they were on so they could receive communications. By the year 2000 WIFI technologies were spreading throughout the world. WIFI technologies gave the increasingly smaller mobile computers massive increases in internet connectivity. Since 2000 the changes have largely been in improved higher speed, smaller more capable mobile devices and greater penetration in the marketplace. However the key change has been the integration of technologies. Phones, computers GPS’s and cameras are now in a hand held package. A mobile phone is now a camera, when it takes a picture its GPS data may be engrafted to the picture. Signal routing from a WIFI system can routinely include the location of the WIFI hotspot. Telephones can be located at any time and linked to the WIFI internet activity. The capability of processing these signals has also exploded. (1) The consumer is essentially faced with a stark choice. Disconnect from the entire connected world, or expose precise geolocation information to a vast number of potentially hostile parties. Many different kinds of parties want access to the geolocation information. Rental car companies can track their fleets, police officers can track suspects, parents can track children, spouses can track one another. stores can track customers and security services can track dissidents. Courts are increasingly asked to resolve very complex issues involving these technologies. Different legal systems and different legal traditions approach the problem in very different ways. The technology may be worldwide but the legal controls are supposedly local. The problem of course is that as long as communication networks are international there may be little or nothing even a national government can do. Unless, like the individual it cuts itself off from the global community. This paper cannot and does not present any “solution” to these problems. What it suggests is an analytical framework suitable to the problem. The framework is called a Technico-legal revolution.(2) A technico-legal revolution occurs when a given technological advance cannot be clearly analogized to existing legal structures. A technico-legal revolution consists of a series of stages in the legal response to the novel developments in technology.(3) The purpose of this paper is to briefly describe the theory of a technico-legal revolution, point out past examples of such revolutions, and then apply the theory to the developments in Mobile Geolocation. Understanding the development of legal analytical principles applicable to Mobile geolocation is an example of the legal system's process of adapting to technological change. TLR analysis allows researchers to anticipate and discount the spurious legal arguments inevitably made each time a new technology is developed. The framework suggests that each technico-legal revolution passes through four distinct phases. Although there is no fixed time period for each phase, a fixed order is identifiable. These phases are: (1) Autonomy, (2) Conflict, (3) Determination, and (4) Resolution. The four phases describe the actions of the parties, and provide a coherent structure for analysis of the problem. In the Autonomy phase, the developers of the technology act without any significant constraints imposed by the legal system, which is essentially reactive and often requires a triggering event before it becomes involved. The second phase is the Conflict phase. Conflict may come from any of a number of sources, including a sudden disaster, a scientific study, or a marketing plan or political action. In the Conflict phase, the developers of the technology are challenged by at least one other interest group, such as competitors, consumers, government, or labor. The conflicting groups stake out claims as to which prior legal analogy is most “relevant” i.e. most favorable to their requirements, and the irreconcilability of the conflict under standard legal analysis is the hallmark of the technico-legal revolution. The third phase is Determination. In this phase, the parties muster the factual support for their predetermined positions. Technico-legal revolutions are extraordinarily fact-sensitive. The assignment of the technico-legal revolution to a particular legal regime depends largely on which set of facts is accepted by the legal system. Typically, the parties know in the Conflict phase which type of facts will support their position. AQs a result political pressure is often used to determine which sets of facts will be researched. Studies which might product unfavorable results will not normally be supported by the party opposed to that position. Depending on the positions taken in the Autonomy and Conflict phases, the parties will want either prompt or extended analysis during the Determination phase. In the determination phase parties routinely “appropriate” phraseology in an attempt to alter the debate landscape prior to resolution. Terms such as “dna fingerprinting” “software piracy” ”signal stealing” “Privatsphere” and even ordinary words like “accident” are created or repurposed to push the legal debate in one direction or another. The goal is to move the debate into a more favorable domain. The key argument used by all parties in the Conflict and Determination phases is the false analogy. Since technico-legal revolutions are defined as situations in which no exact analogy to a preexisting legal regime is possible, the false analogy involves comparing some of the attributes of a new technology to those of a preexisting technology with a legal structure favorable to that party, while ignoring those which would lead to a different conclusion. The analogies are false in the sense that they are not exact as well as in the sense that the divergence from the prior situation is often overlooked or minimized. The fourth phase is Resolution. In this phase the legal system assigns the technology to a legal structure. One of the most important effects of the Resolution phase is the assignment of the burden of proof concerning unknown events. The fact that this burden is assigned after the factual material has been developed is one of the most striking characteristics of a technico-legal revolution. Historical examples of technico legal revolutions include the ability of aircraft to fly over private land without paying, the role of Submarines and Radio in maritime Warfare, the interception of telegraphic and telephonic communications and the development of the concept of informational privacy Early USA cases on Geolocation show a disturbing inability to comprehend just how complex the problem really is and indicate that we are heading towards a fragmented world order of expectations related to the law and Geolocation. There are currently statutory and regulatory proposals in both Europe and the USA. Acknowledgments Dr. Bernd Beier (Germany) is my longtime research colleague in this area and his comparative law insights have been critical. References and Notes Us Government Accountability organization Mobile Device Location Data:Additional Federal Actions Could Help Protect Consumer Privacy GAO-12-903: Published: Sep 11, 2012. Publicly Released: Oct 11, 2012. .Brannigan V and Beier B Standards for Privacy in Medical Information Systems: A Technico-Legal Revolution Proc Annu Symp Comput Appl Med Care. 1990 Nov 7 : 266–270. Brannigan, Vincent M. (1988) "Biotechnology: A First Order Technico-Legal Revolution," Hofstra Law Review: Vol. 16: pp. 154-196.