Experimental legal regime in the field of digital innovations: on the issue of ensuring legal certainty

Chereshneva Irina Junior Scientific Associate, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 iachereshneva@gmail.com Other publications by this author

Introduction. The rapid development of digital technologies that transform objective reality by their implementation, combined with the need for the Russian state to rely mainly on internal resources (which is due to the introduction and expansion of the sanctions regime of unfriendly countries against Russia), "calls" for the search for effective mechanisms and tools capable of: 1) to ensure technological sovereignty ^[1], 2) to mobilize the economy, the core of which should be the "figure", 3) to preserve the well-being of our society. At the same time, in this context, law plays a key role, since, on the one hand, it should not hinder the development of technology, and on the other hand, it should retain its place as one of the universal values. Thus, we can talk about the need to achieve a balance between the development of technologies and their adequate legal regulation. The latter is becoming possible, including within the framework of the experimental legal regime in the field of digital innovation (hereinafter – EPR).

The study of the content and essence of the EPR is possible both through the category of legal experiment and through the analysis of the category of "legal regime". We believe that from the standpoint of business law, it is of particular interest to consider the EPR as one of the types of territories with a special (special) regime for conducting entrepreneurial activity. In this regard, the main part of the work will be devoted to the analysis of the above-mentioned issue. However, for the sake of completeness of the research picture, it is advisable to briefly dwell on two circumstances concerning the legal experiment, which, in our opinion, are important for understanding the essence of EPR:

1) experiment as a method of cognition of objective reality is immanently inherent in the natural sciences, but it has also found its embodiment in the humanities, since its essence consists in obtaining new knowledge by testing hypotheses and theories put forward by the researcher, the result of which can be confirmed or refuted during the experiment. However, the legal experiment has some features, which consist in the fact that the hypothesis of efficiency, economy ^[2] and the objective need for the implementation of "experimental" legal norms in the current legislation in order to determine the degree of influence of experimental legal regulation on the development of public relations is subject to verification. Thus, we are talking about legal forecasting, one of the methods of which is precisely the legal experiment ^[3]. As a result, we can state that the legal experiment has a great research potential, both to test various theoretical provisions in practice, and to determine the trajectory of development of legislation and best practices for its subsequent application ^[4];

2) the importance of a legal experiment for the regulation of public relations in the field of digitalization is undeniable, since, on the one hand, it allows you to adapt existing legal regulation to new realities, make it more flexible and "malleable", on the other – to anticipate possible negative consequences and eliminate potential risks not only from technology per se, but also from its insufficient (or, conversely, excessive) regulation through the adoption of a regulatory legal act. In particular, the latter, according to some scientists, contributes to legal certainty ^[5]. However, is this really the case? We will try to answer this question in the course of this study, choosing EPR as an illustration.

The system of legal regimes of entrepreneurship. In the theory of law, the legal regime is understood as "the order of regulation, which is expressed in a set of legal means characterizing a special combination of interacting permits, prohibitions, as well as positive connections and creating a special direction of regulation" ^[6]. In the science of business law, the issue of the system of legal regimes for entrepreneurial activity is debatable. Thus, A.A. Mokhov identifies a general, special and special (extraordinary) legal regime for entrepreneurial activity ^[7]. The difference between the general regime and the special one lies in the fact that the latter "extends its effect to a limited range of subjects (a certain industry, sphere of activity, or even individually defined), in a different way, in comparison with the general rule, determining their legal status." ^[7], and also establishes "additional guarantees, measures support and (or) restrictions and prohibitions, if necessary." ^[8]. For example, in the context of innovation, the scientist refers to special regimes established within the framework of the Skolkovo Innovation center, the international medical cluster, etc. At the same time, noting the tendency towards "further differentiation of special legal regimes (according to the tasks to be solved, the period of validity, etc.)" ^[8], he also refers to EPR.

It should also be noted that the time factor acts as a unifying characteristic of both general and special regimes (as a rule, they are set for a sufficiently long period of time as opposed to an extraordinary regime). In turn, the introduction of the latter, as a rule, involves undergoing or eliminating various kinds of negative and adverse consequences, including for the life and health of citizens (for example, an emergency situation).

The need to differentiate the special legal regime of entrepreneurship is also pointed out by representatives of the scientific school of entrepreneurial law of the Kutafin Moscow State Law University, who, supporting the position of A.A. Mokhov, also identify a special legal regime for small businesses and preferential treatment (for example, within the territories of advanced socio-economic development) as varieties of a special legal regime ^[9]. Actually, EPR also applies to special modes.

Exploring the legal regimes of banking activity, O.A. Tarasenko, based on the criterion of legal properties, proposes the following dichotomy of legal business regimes: ordinary (special legal regime for certain industries and subjects, experimental and preferential regimes) and extraordinary (military and emergency regimes, sanctions regime, high alert regime) ^[10].

In our research concerning the consideration of territories with a special regime of entrepreneurial activity, in the development of the idea of A. A. Mokhov, we have repeatedly ^{[11, 12]} defended the position according to which the legal regime of entrepreneurship can be represented as a triad: general, special (special) and extraordinary. At the same time, both from the point of view of the legislator and lexically, the terms special and special are used as synonyms. In addition, we defined the special regime of entrepreneurial activity established within the borders of the territories as preferential in order to emphasize its preferential nature, since the core of this regime is a set of benefits and preferences provided by the state to residents of such territories, the essence of incentives. Thus, in the context of territories with a special regime of entrepreneurial activity, when talking about a special, special, preferential regime, we mean the same regime. 

Federal Law No. 258-FZ of July 31, 2020 "On Experimental Legal Regimes in the field of digital innovations in the Russian Federation" (hereinafter – the Federal Law "On EPR") gives the following definition of EPR: the application of special regulation in the areas of development, testing and implementation of digital technologies to participants of the experimental legal regime for a certain period of time innovations (for example, medical activities, industry, agriculture, design, production and operation of vehicles, financial market, etc.).

In our research, we have identified signs-markers of territories with a special (special) regime of entrepreneurial activity ^[12]: a certain territory, a special regime of entrepreneurial activity, purpose (purpose of creation) and a management system. Due to the fact that the EPR: operates in a certain territory (1); the EPR program establishes a special regulation for its participants - a regulatory legal regulation that differs from the general regulation (2); defines the goals of the EPR (3); a special management system functions (4), then the EPR can be considered as one of the types of territory with a special (special) regime of entrepreneurial activity. This, in turn, once again confirms the trend of entrepreneurial legislation noted in science towards further differentiation ^[13].

However, when considering the EPR as one of the types of territory with a special regime of entrepreneurial activity, it is necessary to take into account its experimental component, i.e. take into account its inherent specificity, which, in relation to a special regime of entrepreneurial activity, is expressed not only in providing EPR participants with a set of preferences, but (and this is the main thing) in special exemptions (for example, the non-application of certain norms) from the current regulatory framework. Thus, it is advisable to point out the dual legal nature of the EPR, due to the coexistence and interaction of two principles – the legal regime and the legal experiment. However, does the EPR contribute to ensuring legal certainty?    

EPR and legal certainty: points of contact. Due to the existence of objective and subjective factors of the effect of lagging legislation ^[14], as well as the fact that this effect is per se inevitable, since life is always richer and faster than legal regulation, the establishment of EPR, according to the legislator, should act as an effective tool to overcome such an effect. However, a different position is defended by N. A. Dmitrik, who draws attention to the limited prospects for the use of EPR, pointing out that this kind of regime extends its effect to a fairly narrow range of subjects, while breakthrough technologies radically transform all spheres of society (1); the approach to regulation assumes a point-by-point nature of changes, on the contrary, the emergence of cyberspace or the data sphere ^[15] changes the balance of power, which directly affects the balance of interests of the participants in the relationship (2); legal certainty does not decrease, but, on the contrary, increases (3) ^[14]. In addition, the literature notes "that the practice of experimental regulation contradicts the principle of legal certainty" ^[16], which, acting as an element of the rule of law, presupposes stability and predictability of legal regulation ^[17].

Without detracting from the above arguments, we note that the fundamental purpose of EPR (as well as their "brother" - regulatory sandboxes ^{[18, 19]}) is to test new technologies, both their advantages and, most importantly, risks (for example, algorithm bias, the use of artificial intelligence such as a "black box" and others), including legal ones (for example, discrimination). Thus, the legislator balances between the need to ensure and stimulate a technological breakthrough and the protection of human and civil rights and freedoms. And in this sense, EPR can act as a flexible and fairly effective tool, taking into account its consideration as an "intermediate strategy of law-making activity between advanced legal regulation and postponement of legal regulation." ^[16], which, in turn, will allow implementing an adequate approach to the regulatory regulation of digital technologies, rejecting excessive regulation, so is his complete absence.

As a result, such adaptability of the legal system will be able to guarantee the dynamism of legal certainty, "so that laws can remain "defined" in the light of available information and the dynamic phenomena that they regulate." ^[16]. In this regard, it is no coincidence that the modern law and order "is characterized by such properties as constant reproducibility and variability, i.e. not statics, but dynamics." ^[20]. At the same time, the dynamism inherent in the legal order should not be interpreted as "pandering" to expediency (when efficiency and effectiveness are put "at the forefront", and rights and freedoms are sacrificed), which can lead to undermining the rule of law ^[21].

Conclusion. In the course of the study, the following conclusions were made:

Firstly, the dual legal nature of the EPR makes it possible to consider it both as one of the types of territory with a special (special) regime of entrepreneurial activity, and as a legal experiment;

Secondly, the intermediate place of the EPR between advanced legal regulation and postponement of legal regulation has been determined, which allows us to speak about the dynamism of legal certainty;

Thirdly, EPR can be considered as an effective means of overcoming the effect of lagging legislation only in the case when legality is not replaced by expediency.

In conclusion, let us quote the following: "rigid predestination and absolute orderliness are perceived positively by many, although this leads to stagnation and completely excludes any development." ^[22].