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Consilience 2021

 

June 10-13, 2021

A 4-day online conference on 

Competition Law & Technology and Legal Tech Startups

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Consilience is an annual academic conference that explores the intersection of legal issues and technology. It was started in the year 2000 and was the first of its kind in India. It is a one-off opportunity for scholars, students, academicians, and practitioners alike to learn about pertinent policy-based issues concerning law and technology through its high-quality discussions.

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Consilience 2021 invited esteemed speakers on the emerging interface of business, law, and technology. The discussion ranged from the interesting and popular field of Competition Law and Tech to an equally fascinating aspect of Legal Tech Start-ups.

 

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Executive Summary

(Click here to view the full conference report)

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Inaugural Address by Justice S. Ravindra Bhat (Judge, Supreme Court of India)
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  • Over the past decades, the use of technology in the practice of law has increased and the changes due to pandemic have simplified technology for businesses. Eg: - combination of big data and use of algorithms

  • Provision of extremely valuable information for improving decision making, enabling entities to run their business strategies and to develop innovative customized services. This also gives rise to concerns like issues of merger control, exclusionary practices, barriers to entry and collusion.

  • The challenges of competition authorities, therefore, primarily lies in understanding how technology works, and how the algorithm can facilitate or support antitrust infringement.

  • The practice of law and the traditional functioning of courts has much to gain from the use of technology. Examples of some measures include online hearings, electronic files, identify priority cases, case management, deployment of customized AI tools for research and enhancing access to justice.

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Theme 1, Panel 1: Dominion over Data: An Analysis of Modern Market Supremacy

 

Panel:

  1. Prof. Rahul Singh (Associate Professor, NLSIU)

  2. Prof. Abha Yadav (Associate Professor, IICA)

  3. Mr. P.K. Singh (CEO, Government e-marketplace)

  4. Prof. Jacques Cremer (Professor and Researcher, TSE)

  5. Ms. Jyoti Jindgar Bhanot (Anti-Trust Division, CCI)

Moderator: Prof. Aditya Rathore (Assistant professor, BMU)

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  • On Data Dominance and Market Supremacy : Data is a critical resource at the disposal of enterprises on account of its velocity, volume, value, variety, veracity, variability and visualisation. Pre-existing loops can make it difficult for new entrants and enabling competition. This can result in capturing of the interconnected digital ecosystem and abusive conduct.

  • On Problematic aspects of Dominion of Data : Data is social, which means that it has network externalities. This makes it harder for individuals to manage their data.

  • On need of reforms in antitrust and competition law : There is no defined model for the digital economy like we have for the traditional economy in the competition law. There are no markets in the proper technical sense in the digital side. There is lack of clarity like in case of two-sided platforms where the same definitions cannot be used. There is, thus, a need to re-define market since the competition law is muddled in this aspect.

  • On Data and Competition Concerns : The abuse of dominance by large digital firms cannot be completely checked by the competition law framework. Some policy rules such as Merger Controls, Advocacy may be helpful in some cases. Data is different from oil; oil is discovered while data is created. High access to private data by firms can lead to abuse as the data helps firms target individual customers. The abuse is minimal in public procurement (GeM) considering the fact that the only buyer here is government and the transactions are governed by different rules and policies.

  • On Data and Privacy Concerns :  Data accumulation by firms is not, by itself, a violation of Privacy if it is put to good use. If the data collected by a dominant firm is shared with smaller firms, it will foster competition, thus ‘protected’ use of data is not bad. With respect to concerns regarding privacy, CCI has powers to regulate different sectors, but there exists a gap which can be filled by the Data Protection law. A coordinated approach between CCI and other regulators may provide better regulation for the digital markets as they are not limited by territorial boundaries.

Theme 1 Panel 2 (Anti-competitive algorithms and challenges in antitrust)

 

Panel:

  1. Prof. Rahul Singh (Associate Professor, NLSIU)

  2. Ms. Smriti Parsheera (Fellow, CyberBRICS Project)

  3. Prof. Thibault Schrepel (Faculty Affiliate, CodeX)

  4. Ms. Tatheer Fathima (PhD Candidate, NLUD)

  5. Dr. K D Singh (Director at Anti-Trust Division 1 and CPIO, CCI)

Moderator: Prof. Amit Kumar Padhy (Asst. Professor of Law, Christ University)

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  • Can algorithms collude?  Yes, the CCI looked into this in the airlines cartel case. However, algorithms are only programs so, existing laws are sufficient. The principal cannot be absolved from its principal liability.

  • How would liability exist in blockchain? Liability can merely be established on the person deploying the algorithm. Since there is no one single legal entity, it would have to be created. Another concern is that smart contracts can be deployed on blockchain and give certainty to collusion.

  • What is the difference between private and public blockchain?  In public blockchain, no one can impose decision on others. In private, there is more control, which can potentially be anti-competitive.

  • What is Law and Programming?  Lawyers dealing with these questions ideally have to know the basics of code. Otherwise, lawyers tend to either see the wrong problems, fail to see the relevant problems or propose an unviable solution.

  • Are the current laws sufficient to tackle blockchain? Blockchains are inherently neither ‘pro’ nor ‘anti’ competitive. Both blockchain and antitrust have similar origins in that both want decentralisation of economic opportunities without control being in the hands of a single dominant participant. Regulatory sandboxes are the need of the hour.

  • Can we imagine a future of friendly relationship between algorithms and competition law? The law is always technology-agnostic and does not change with technology. The recent High Court decisions are evidence of the higher judiciary’s continued faith in the Commission.

  • Can anti-trust laws keep up with technology? It is important to differentiate between different algorithms and know what the technology is in each context. Since competition law is a principle-based law, there is scope for interpretation. Regulators can also make use of technologies. One way is APIs and web scraping tools. A second way is algorithms can be trained on previous law. A third way is that AI and machine learning can create agent-based models. Ultimately, although there are problems, there are also opportunities in this space.

Theme 2 Panel 1 (Legal Tech Startups and (Promising?) Future Prospects)

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Panel:

  1. Mr. Bhavin Patel (Consultant, Bayside Tech)

  2. Mr. Sachin Malhan (Co-founder Agami)

  3. Mr. Shashank Bijapur (CEO, Spotdraft)

  4. Ms. Vinita Varghese (GC, Urban Company)

Moderator: Mr. Nikhil Kanekal (Head of Marketing, Crediwatch)

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  • It is necessary to understand legal tech startups in a wider framework of the intersection between law, technology, and business and the value creation that emerges out of it.

  • Qualities like evolved articulation, logical and analytical thinking, ability to dive deep into a subject and critical stakeholder management set apart legal professionals as a class. Thus, by marrying law into business and technology, a lot is brought to the table.

  • Our journey determines us. In a world that demands interdisciplinary learning and constant relearning and unlearning, it becomes necessary to engineer our life in a way to integrate different experiences in our journey.

  • The post-1999 technology boom made the unthinkable possible. Individuals shifted from being consumers to creators of technology.

  • One may have a vision but it has to align with what the people want. It’s important to expose oneself beyond one’s role as a product or service entrepreneur, and see what is it like to create a field/ecosystem.

  • Legal tech is more than just being a part of companies and law firms. It’s also known as ‘Justice tech’, because it also deals with how it can contribute to legal services.

  • The problem is that India is at the ‘Idea stage’ due to a lack of seed funding which does not support experimentation.

  • There are some building blocks to achieve greater heights. Some of these are open technology, capital, data availability, etc. AGAMI, as an organization, is already working on some of them.

  • The legal field, unlike other fields, had a slow beginning with its interaction of technology with the lack of purpose-built software. Now, platforms like SPOTDRAFT provide end- to-end contract automation drafting. The idea is based on the similarity between code and law, and the desire to make lives of legal professionals easier.

  • Technology cannot make lawyers redundant. The grunt work can surely be done away with but the value-adding work like counsel and expertise can’t be.

  • It is necessary to know the basics principles of technology and integrate them into your job because they form a fundamental part even of the ‘vanilla’ lawyer work.

  • Just because there is a similarity between two systems does not mean that they can be wholly applied to each other. The history of formal logic and law shows us that there exist certain similarities, but there also exists divergence. Thus, the question about the limits to which rules of formal logic can be applied to law still exists.

  • There is a lot to be desired in terms of how emerging businesses have come to exist with an acute lack of awareness about the fundamental concepts of humanities, social sciences, individual rights, privacy, etc.

  • Legal tech startups are not about learning a course on law and technology. It’s about engaging with the market. It’s about going beyond the armchair thesis and getting into the making of it.

  • Resilience and persistence are the most important attributes to keep you in the game. One should be very passionate about what one wants to do, but, at the same time, should know when to stop.

  • It’s great to talk about law and technology, but if one wants to do it, it’s necessary to understand both formal logic and the nature of law.

Theme 2 Panel 2 (Transforming the practice of law in 2020s)

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Panel:

  1. Dr. Aditya Sondhi (Senior Advocate, Karnataka High Court)

  2. Mr. Hrishikesh Datar (Founder and CEO at Vakilsearch.com)

  3. Mr. Karthik Mahalingam (Head of Corporate Governance at Flipkart)

  4. Mr. Shivam Singla (Founder of Leegality)

Moderator: Mr. Rishi Shroff (MD's Office at JSW)

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  • The panel discussion was primarily concerned with the Legal Tech Startups and the various stakeholders concerned with it. For this purpose, the panellists were divided into 3 categories of stake holders.

  • What is the extent to which technology should be adopted in law?  There needs to be a distinction between the core and non-core elements of law. Technology can be used as default in the non-core element. Technology should be considered as an enabler which helps us achieve our end goal.

  • How can technology assist Judiciary? Justice delivery cannot be outsourced to technology. Key elements such as fact finding and decision making have to be performed by the lawyers and judges. A contrasting position was taken by considering justice delivery as a commodity. Technology should be used to improve the overall satisfaction the litigant had as a customer.

  • How can technology help in the business sphere? Technology can assist in legal aspects dealing with businesses, but the final review should vest with the counsel. Though, it raises the concerns of deciding the costs for the service provided.

  • How effectively are the tech products being adopted? The main concern is the lack of good solutions. But, in the recent past, effective solutions have been floated in the market.

  • What changes need to be brought in the sphere of education with respect to legal tech? The law school curriculum should be more rooted in the reality and should also help fight prejudices.

  • What changes can be introduced in government policies to enhance legal tech? The government has a careful role to play both as a litigant and a service provider. Push towards digitization by the government has already helped. Government can also help by acting as a think tank or policy designer.

  • Can technology replace jobs in the legal sphere? Technology cannot replace jobs. Experience and institutional knowledge are required for the practice of the law. It is necessary that the core elements of the practice of the law remain human to avoid injustice and inequity.

About Law and Technology Society (L-Tech) : L-Tech is a student-run committee of the National Law School of India University, which works in association with IJLT for promoting the study of the interface of law and technology in India.  The committee may be reached here.

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