Dispute Resolution and the Shift From Risk to Uncertainty: Navigating Ambiguity in New EU Digital Regulations

The EU’s ever expanding digital regulation, introducing new regulatory methods such as risk-based compliance, an ex ante approach, and the extended use of delegation, are having profound effect on how business is conducted. The mainstreaming of digital regulation and the resulting compliance requirements bring about fundamental changes in ordinary commercial contracting, particularly in how litigation risk is managed. The first and immediate effect of this is the dominant effect of compliance in commercial contracting and the parties’ reduced ability to allocate obligations related to this. In this article we outline the main changes in digital regulation in the EU. We then discuss the ways in which these changes impact international commercial litigation from the perspective of risk management, suggesting some strategic mechanisms for managing the uncertainty.