Legal enclaves as a test environment for innovative products: Toward legally resilient experimentation policies¹

Abstract

Many countries adhere to the Organisation for Economic Co-operation and Development creed that innovation is good for the economy. Experiments are often used to intentionally create space for innovation. Decisions allowing experiments result in temporary legal enclaves for a few, excluding many others. Therefore, they come with risks. The aim of this article is to provide a set of guidelines that help improve the legal resilience of experimentation policies, so they are better able to withstand legal attacks when they occur. To do so, we first arranged the existing diversity of legal experiments in a theoretical model. Special attention was paid to two archetypes of legal experiments: statutory experiments and regulatory sandboxes. Second, we analyzed the impact of both types of experiments on four core legal principles: legality, certainty, equality, and public accountability. From this assessment, we eventually formulated a set of guidelines to secure or improve legal resilience.

Assessing the regulatory challenges of emerging disruptive technologies

“…In their article, Philipsen et al . (2021) discuss the use of procedural tools in emerging technology regulation, notably the use of legal enclaves to test innovative products and the regulatory issues they raise. This procedural tool aids in the development of regulation by fostering regulatory innovation.…”

Determination of objectives and responsibilities of public administration bodies in correlation with legal and managerial aspects: case study of the Slovak Republic

“…al. 2021); 10. reduce inequalities within countries i between them, 11. make cities and human settlements inclusive, safe, resilient and sustainable (Philipsen et. al.…”

GMO Regulation in Crisis – The Experimental Potential of Regulation (EU) 2020/1043 on Covid-19 in Addressing Both a Crisis and a ­Pandemic

“…They refer to the reconcilability with principles such as equal treatment and legal certainty (see also Ranchordás, 2013). Opponents of legislative experiments fear infringement of those principles (see also Philipsen, Stamhuis & De Jong, 2021). Following the framework of Faulkner and Poort, these legal principles are part of the legal knowledge setting the scene for legal decision-making.…”