An experimental approach to regulating non-military unmanned aircraft systems

ABSTRACT This article introduces three modes of regulatory experimentation – derogation, devolution and open-texture – for regulators to respond to the challenges brought by disruptive innovation such as non-military unmanned aircraft systems (UAS). This article argues that where there is an urgency of requiring a regulatory response to a new societal challenge, and there is serious empirical uncertainty about expected technological or regulatory events and/or their consequences, experimental regulations can be a fitting approach in dealing with the new challenge – as with UAS. As the risk of failure is an intrinsic aspect of innovation, the most significant function of regulatory experimentation is to yield useful information rather than verify the validity of an innovation. Nevertheless, the setting of experimental regulation should take into account both epistemic requirements and legal values. The principles of certainty, equality and proportionality express the legal values that guide decision-making towards legitimate experimental regulation. The experimental approach demonstrated in this article also provides a model of ‘future-proof’ regulation. This is applied to UAS particularly by zones as experimenting by derogation and perhaps also by devolution and open texture.