IECL Seminar Series

Florian Bode

Coventry and Comparative Law

Coventry v Lawrence [2014] UKSC 13 was a significant decision, both for the law of private nuisance and for the award of damages in lieu of an injunction. In a noise pollution case, the UK Supreme Court more readily allowed the award of damages in lieu of an injunction, reserving the courts’ “unfettered discretion” in this matter. The presentation will examine the reception of Lawrence in subsequent English case law and in comparative German scholarship.

How far to "move away from the strict criteria" which had previously governed the award of damages in lieu was something their Lordships disagreed on in Lawrence. Lord Sumption put forward for (further) discussion that damages are "ordinarily an adequate remedy for nuisance", emphasising the parallel with contractual remedies and questioning the special treatment of land in equity. Lord Mance defended this treatment, arguing that most people value having a home free from disturbance for "reasons largely, if not entirely, independent of money". What has been the impact of Lawrence in the eleven years since? Arguments for greater judicial discretion based on the decision have been rejected by the Supreme Court in restrictive covenant and patent infringement cases. However, the Court has allowed private nuisance claims against sewerage companies because damages, unlike injunctions, would not interfere with the regulatory regime. This suggests a narrow interpretation of Lawrence as an attempt to reconcile private nuisance and public planning.

A similar question – at what level of generality should the decision be read – arises for comparative lawyers. In recent years, German comparative scholarship has been eager to adopt the common law category of 'remedies' as an analytical tool in private law. In this context, Lawrence is cited as a prime example of the remedial flexibility of English law. This – supposedly – greater sympathy for damages is then contrasted with contractual remedies, since specific performance, also an equitable remedy, is not generally available, other than in most continental European jurisdictions. While the doctrinal fit with a system's macro-preference for monetary awards over in specie remedies (or vice versa) cannot be disregarded, a functionalist comparative account must come first. Such a functionalist account lends support to the narrow reading – under German law, where planning permission and tortious liability are based on the same noise thresholds, there would not have been similar pressure to implement changes at the remedial stage. Can the two approaches be usefully combined, adopting the category of 'remedies' for the specific social conflict identified by the functional method?

Assoc. Prof. Riikka Koulu

Boundaries of Human Oversight in AI Policy and Regulation: Comparisons between European, Nordic and British Perspectives

Within the recent years, the EU has introduced several new legal instruments that govern and regulate various aspects of digital society and its technologies. This emerging legal regime of European technology regulation builds on and develops further the legislative solutions of the General Data Protection Regulation (GDPR), which has proven to be a highly influential legal instrument also beyond the Single Market. Arguably the Commission now hopes to replicate this Brussels effect of the GDPR, i.e. the soft influence to shape policy debates as well as regulatory practices (Bradford 2012), with its newly adopted Artificial Intelligence Act (AIA). In the AIA, human oversight is set as one of the focal legal principles and safeguards against risks to safety, security, and fundamental rights related to AI.

In this talk, I draw on socio-legal studies on law, technology, and society as well as Science and technology studies to critically examine AI policy and regulation from the perspective of human oversight. What makes human oversight particularly interesting is that as a legal principle, it presupposes – as well as co-produces – a certain understanding of the relationship between humans and machines. For most part, the principles of AI policy and regulation are surprisingly unvaried and repetitive around the world, despite jurisdictional and cultural differences (e.g. Hagendorff 2019; Koulu 2020a). These similarities raise several questions. Where are the differences hidden? Do they emerge in the collisions between technology regulation and other legal regimes, where are the differences? What should one compare and how, legislative texts, legal principles, regulatory institutions? What do these similarities and nuanced differences reveal about implicit assumptions behind human oversight?