Private Law Theory

ABSTRACT
Artificial Intelligence (AI) has firmly caught the eye of policy and law-makers around the globe. The deployment of AI-based processes in a wide range of situations will prompt a plethora of legal questions and discussion about whether to make changes to current laws and/or develop new laws. Despite the flurry surrounding AI, it is important to form a dispassionate view of where AI might usefully be deployed and to consider whether this will really raise fundamentally novel issues that need to be addressed, and, if so, how. It is important not to fall into the trap that the mere arrival of something novel inevitably means that new laws are also required, nor that the technology itself should be the focus of regulation. Instead, each application of a new technology needs to be considered in its particular context to determine whether relevant laws really need to be adjusted, or new laws enacted, to accommodate this.

Nevertheless, there can be some value in taking a forward-looking perspective in an attempt to gauge what the impact on a particular area of law might be in anticipation of the possible deployment of AI-based applications. Such an exercise must be subject to the caveat that it is not only speculative, but also based on assumptions about the potential functionalities of such AI-based applications, and therefore that the reality might turn out differently. This contribution is speculative and focuses on the possible development of an AI-based application for consumers which can be deployed by a consumer to take over one or several stages, or the entirety, of the contracting process, ie, decide when and on what terms to purchase something, to complete that purchase, and deal with any unexpected occurrences during the performance of the contract (eg, late or non-delivery). This AI application will be referred to as a ‘digital delegate’. The deployment of a digital delegate across the contract life-cycle might prompt various legal questions, but this contribution focuses specifically on contract formation through a digital delegate. In a consumer context, such digital delegates would usually be provided by third party developers and then deployed by a consumer to conclude contracts with traders. As well as considering the contracts with traders facilitated and/or concluded through a digital delegate, the contractual relationship between the consumer and the provider of the digital delegate itself will also need to be considered, not least because the latter could be an important avenue for redress if something has gone wrong in concluding the former. This contribution analyses whether the deployment of digital delegates would raise new issues for consumer law, in particular. It will be argued that one key legal development will be required to provide consumers with some controls over the digital delegate; however, rather than doing so through the introduction of new consumer rights, it will be suggested that this might best be achieved by stipulating a number of key technical features which digital delegate applications should provide.

Twigg-Flesner, Christian, Consumers, Digital Delegates, Contract Formation and Consumer Law (June 16, 2023) in Larry DiMatteo, Cristina Poncibò, and Geraint Howells (eds), The Cambridge Handbook of AI and Consumer Law (Cambridge University Press, forthcoming in 2024).