Portait of Florence Guillaume
Professor of Civil Law and Private International Law at the Law Faculty of the University of Neuchâtel
Florence Guillaume holds a doctorate in private international law from the University of Lausanne and is a lawyer. She practiced law in Geneva and Zurich for six years. In parallel to her career as a lawyer, she published scientific contributions and articles in specialized journals and worked at the Hague Conference on Private International Law. After a period at the Federal Office of Justice in Bern, in the Section of Private International Law, she was nominated in 2006 as a full professor at the University of Neuchâtel. Florence was Dean of the Faculty of Law for three years. She has been a member of the University Council for several years. In 2020, she created the LexTech Institute, a university center dedicated to research and training in digital technologies.
Meet a creative and curious researcher who is not afraid of legal novelty.
What have been the highlights of your career?
My experience at the Hague Conference on Private International Law was a determining factor in my career. I worked on the drafting of the Convention on Intermediated Securities within this international organization whose objective is to create uniform rules of private international law. This convention applies to the field of international financial markets, a very specific area that required the adoption of a new type of law. I have always been interested in creating new legal rules for legal institutions that are little known or unknown in the Swiss legal system. This passion started with trusts when I was an assistant at the university, a subject I studied alongside my doctoral thesis which was devoted to international companies. Today, I am particularly interested in the legal issues that arise in connection with the use of new technologies, such as blockchain and artificial intelligence. For all these new topics, it is always a question of examining a legal institution that does not exist in our legal system and imagining the new rules that could apply in order to provide a certain legal security, particularly from an international perspective. This type of scientific research is guiding my academic career.
What are the main challenges and difficulties you face?
When you are interested in new institutions that have implications for law, the main challenge is to understand what you are talking about, to be able to get a picture of the basic mechanism. Then you have to conceptualize legal rules that make sense. For example, when a smart contract is used to formalize a legal relationship, it is necessary to understand the basics of blockchain technology if one wants to create legal rules that can be applied in practice given the IT requirements. Furthermore, the use of blockchain occurs in the context of international relations and therefore the first question that arises is to identify the legal order in which the legal relationship is anchored. Is it Swiss law or another law that should apply? There is no uniform international law regime in this area. The law lags behind technological development and this leads to a great deal of legal uncertainty. There are projects at international level to try to establish common rules of law but, for the moment, they do not yet exist because they have not been adopted by the States. Each State is free to adapt or not its legal system by adopting new legal rules.
In Switzerland, we are quite advanced at the legislative level. The Swiss legislator has, for example, adopted a new law on the adaptation of Swiss law to developments in distributed electronic registry technology, which came into force at the beginning of 2021. This has allowed for ad hoc adjustments to be made to certain laws to ensure that new rules applicable to the use of blockchain are incorporated into Swiss law. Nevertheless, it is difficult to know when Swiss law applies, as the decentralization of blockchain nodes, with computers potentially located in every state in the world, makes it extremely difficult to determine the most central point of attachment. Only when it is possible to anchor the legal relationship in Swiss territory is Swiss law likely to apply. The questions of private international law that arise in connection with the use of this technology have as yet been little explored. The main challenge in creating new legal rules for legal institutions that are little known or unknown to the Swiss legal order is to design rules that can work in practice and provide the required level of legal certainty.
Do you work with people specialized in new technologies? On which subjects?
I work with computer scientists so that I can keep abreast of new technological developments and better understand the challenges of the digital revolution. The aim is to design legal rules that are technology-neutral and that can be applied to current and future technologies
The year 2021, in connection with blockchain, is the year of NFTs (non-fungible tokens). As far as legal rules are concerned, we are in a state of complete limbo. The rules that may apply to NFTs are not designed for this type of assets. For example, it is not clear whether the transfer of ownership of the token also implies the transfer of the right to the work attached to the token. People spend huge amounts of money on NFTs and it is admittedly difficult to know what exactly they are buying. In addition, there is the question of which state's law is applicable. The answer to this private international law question has important legal consequences. There may be an effective transfer of ownership under the law of one State, but not under the law of another State. Today, there is a substantial legal uncertainty in the field of digital technologies. In the context of my scientific research, I am trying to imagine legal rules that could be adopted by the Swiss legislator in order to provide greater legal certainty.
Do you have additional research subjects?
Another subject I am currently interested in is conflict resolution. I am interested in the development of new dispute resolution mechanisms that are available online. These are alternatives to state justice, i.e. private online courts that are set up for the resolution of conflicts resulting from the use of blockchain and whose operation is fully integrated into the philosophy behind the use of this technology to develop a crypto-economy. These private courts are composed of judges who are specialists in the blockchain community (lawyers, computer developers, experts in the field, etc.). A decision is rendered according to their joint assessment of the dispute, following several successive votes, according to a procedure involving economic and consensus mechanisms unknown to state justice. This is still a niche area, but these new modes of dispute resolution based on blockchain are gradually being implemented and could constitute an interesting alternative to state justice.
I am also interested in the protection of the private sphere, and in particular the protection of personality rights in the digital environment. The right to control private data is a fundamental right that protects all people, regardless of their nationality or residence. In my view, it is important to adopt clear rules that also protect the digital integrity of every person active on the internet, in the same way that the physical and psychological integrity of every person is protected by law. The right of digital persons also raises other questions: Can an artificial intelligence have rights and obligations? Can an artificial intelligence be held legally responsible for its actions? These are all questions to which the European legislator is in the process of providing comprehensive answers by seeking to reconcile the protection of the fundamental rights of individuals with the development of trustworthy artificial intelligence. The Swiss legislator's approach in this area is more ad hoc, since it has merely revised the law on data protection.
What is your preferred approach to these new technologies?
In my opinion, it is essential to work with people who are experts in new technologies when thinking about the adoption of new legal rules in this area. For example, I participated in an international working group of legal and technology experts to develop a legal framework for DAOs (Decentralized Autonomous Organizations). The synergies created between the different members of the working group, coming from various backgrounds, allowed the elaboration of a draft model law on DAOs proposing a flexible legal framework adapted to the characteristics of this new form of entities operating mainly on the blockchain. I am convinced that such a project could not have been completed without this multidisciplinary approach.
In 2020, you founded the LexTech Institute, what was the fundamental idea behind this project?
The LexTech Institute was born out of the desire to intensify the collaboration between lawyers and computer scientists at the University of Neuchâtel. I founded this university center with prof. Pascal Felber to promote exchanges between researchers in these two disciplines at our university. Our basic idea was to develop a common language between lawyers and computer scientists to be able to design more efficiently a coherent legal framework taking into account the technological constraints. Very quickly, the LexTech Institute attracted the attention of researchers from other disciplines who were also conducting scientific activities related to digital issues. We then decided to integrate these other disciplines into the LexTech Institute's research and training themes and thus created a community of scientists analyzing the development of the 4.0 society in a global way in all the specific research fields related to digital technology. Currently, we have 8 Labs bringing together more than 100 researchers from the University of Neuchâtel.
We are in the process of setting up scientific collaborations with other academic institutions, including Swiss and international universities, and of course with the world of industry. The research at the LexTech Institute is not only academic, but also practice-oriented. We have a blog on the website on which one or two posts are published per week. These are short articles on current topics related to the digital revolution that have a scientific content but are completely understandable to everyone. We are also very active on social networks (LinkedIn, Twitter and soon Instagram) and we are going to launch a YouTube channel by the end of the year with videos presenting in a simple and accessible way scientific topics related to new technologies in the fields of law, computer science, economics, humanities and social sciences.
What do you think of the Neuchâtel innovation ecosystem?
I think it's a very active ecosystem and conducive to innovation. Personally, I am quite close to entrepreneurs in the field of blockchain and I am very impressed by the dynamism of Neuchâtel companies that use and develop this technology. I think that Neuchâtel has taken the digital turn and has an important card to play at the Swiss and international level in the field of distributed ledger technology. The Neuchâtel blockchain ecosystem is made up of very successful companies and highly qualified people who are developing innovative projects like NEDAO. To my knowledge, this is the first project to use a DAO in a didactic way to make the new tools of blockchain technology accessible to the public. Among the recent projects, we can also mention the NYM company or the ORIGYN foundation which seem to me to have a bright future. I see this innovation ecosystem as a logical extension of the watch industry, with which there is an obvious continuity. This tradition of making expert use of new technologies is now attracting central players in blockchain who are enabling Switzerland to occupy an important place in this field internationally.