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Algorithmic contracts and the equitable doctrine of undue influence

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$25 – $500

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Algorithmic contracts and the equitable doctrine of undue influence: Adapting old rules to a new legal landscape

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With the growth of “smart” and digitally enhanced contracting, scholarship has pointed out that practitioners and scholars should ‘carefully consider the role of equitable remedies in the context of contracts drafted in whole or part in executable code’. This presentation builds on our research on this topic, examining the adaptability of the centuries old equitable doctrine of undue influence to the contemporary and increasing use of algorithms and “smart” technologies in contractual relations. It focuses on algorithmic contracts in which the digital technology plays an active role in the formation of the agreement, as this is the type of contracting that challenges the very fundamentals of traditional contract law.Faced with challenges stemming from a disruptive technology, instinct may dictate taming the technological beast with a variety of regulatory responses. While regulatory action may be a priority from a public policy perspective, features such as automatically generated contractual content and the seemingly unquestionable trustworthiness of the system carry with them the inherent risk of lack of autonomy and fully‐informed independent decision‐making that, in Australia at least, is addressed by equity through the doctrine of undue influence. We explore whether this traditional doctrine can adapt to operate alongside regulation in dealing with some of the challenges presented by algorithmic contracting.

CPD Value: 1 CPD point in Competency Area 4: Substantive Law

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About the presenter

Professor Natalie Skead has been Dean of the UWA Law School since 2017.

Natalie's principal research and teaching areas are Property, Land Law and Equity and Trusts. She completed her doctorate on the proprietary implications of Australian proceeds of crime legislation. She is a prolific researcher with an extensive publication record in Property, Confiscation of Proceeds of Crime, Equity and Trusts, Legal Education and Wellbeing in Law. Natalie is a Fellow of the Australian Academy of Law, Chair of the Australian Law Academics Association, Deputy Chair of the Council of Australian Law Deans, Associate Editor of the Legal Education Review and a Principal Fellow of the Higher Education Academy. In 2011 she received a national citation for her outstanding contribution to student learning and in 2017 she was the recipient of the national award for teaching excellence in law. Prior to joining the academy, Natalie practiced as a solicitor for over ten years specialising in Corporate Finance, Commercial Litigation, Property and Securities.

Dr Marco Rizzi is a senior lecturer within the UWA Law School where he teaches in the Juris Doctor and Master's programs. He researches the law as a tool for the protection of individual and collective health and safety and the relationship between law, politics and the market.Dr Rizzi obtained an LLB and a Master in Civil Law at the University of Pisa (Italy) and an Honours Diploma in Legal Sciences at the Sant’Anna School of Advanced Studies of Pisa. He holds an LLM in Comparative Law and a PhD from the European University Institute in Florence (Italy). Before joining UWA he was Senior Lecturer and Head of Department of Law at the University of Seychelles.Currently, his research addresses the public/private divide and the public functions of private law. He also looks at the evolving relationship between risk, uncertainty and law, and the extent to which legal tools can address emerging risks and the power relations that inspire regulatory action.

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