Critical Legal Conference 2024: Speculation(s)

Description

Between Regulatory Fixity and Flexibility in the EU AI Act
Stefan Larsson, Lund University

The EU AI Act aims to regulate artificial intelligence (AI) in a way that balances innovation and protection from harms, but faces the challenge of keeping pace with the fast and dynamic development of AI. This paper examines the tension between fixity and flexibility when regulating emerging technologies, drawing on literature on the so-called pacing problem, contrasted by sociolegal theory on the importance of predictability and legal certainty, as a basis to address recent changes in the regulatory AI landscape. Specifically, it analyses how the EU AI Act, under the aim of being “future-proof” according to relatively newfound EU terminology, employs various mechanisms of flexibility, such as i) voluntary measures and codes-of-conduct, ii) delegated and implementing acts, and iii) harmonised standards to cope with the uncertainty and complexity of AI – potentially at the expense of predictability. The study includes aspects of how the AI Act addresses the emergence of general-purpose AI and generative AI, to illustrate challenges associated with regulating rapidly developing technologies. In conclusion, the paper argues that while flexibility is unavoidable when drafting law explicitly targeting such a swiftly moving and conceptually blurry field and concept as AI, it also entails trade-offs such as reduced legal predictability, which is concerning since predictability is essential for ensuring trust and legal certainty in the regulatory framework around this set of technologies, as well as a shift in powers, to the Commission and standardisation organisations.

Period	2024 Sept 16
Event type	Conference
Location	Lund, SwedenShow on map
Degree of Recognition	International