Legal enclaves as a test environment for innovative products: Toward legally resilient experimentation policies

Abstract

Many countries adhere to the Organisation for Economic Co-operation and Development creed that innovation is good for the economy. Experiments are often used to intentionally create space for innovation. Decisions allowing experiments result in temporary legal enclaves for a few, excluding many others. Therefore, they come with risks. The aim of this article is to provide a set of guidelines that help improve the legal resilience of experimentation policies, so they are better able to withstand legal attacks when they occur. To do so, we first arranged the existing diversity of legal experiments in a theoretical model. Special attention was paid to two archetypes of legal experiments: statutory experiments and regulatory sandboxes. Second, we analyzed the impact of both types of experiments on four core legal principles: legality, certainty, equality, and public accountability. From this assessment, we eventually formulated a set of guidelines to secure or improve legal resilience.