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Here is the English translation of the list of symposium speakers:

Keita Nishiyama, Visiting Professor, Institute for Future Initiatives, The University of Tokyo

Hiroki Habuka, Visiting Professor, Graduate School of Law, Kyoto University

Maiko Meguro, Director for Planning, Digital Agency

Tatsuhiko Inatani, Professor of Civil and Criminal Law, Graduate School of Law, Kyoto University

Jouji Shishido, Professor of Public Law, School of Legal and Political Studies, Graduate Schools for Law and Politics, The University of Tokyo

Satoshi Yamada, Professor, Center for Interdisciplinary Studies of Law and Policy, Graduate School of Law, Kyoto University

Takafumi Ochiai, Head, Policy Research Institute / Senior Partner Attorney, Atsumi & Sakai (Member of the Daini Tokyo Bar Association)

Hirohiko Nakahara, Councillor, Cabinet Secretariat

Affiliations are as of July 2024.

1.Agile Governance and the Digital Transformation of Law-Prof. Keita Nishiyama & Prof. Hiroki Habuka

This part of the symposium addressed the limitations of traditional governance characterized by siloed structures and rule-making in advance through detailed legislation. It emphasized the need for a transformation of governance based on changing societal premises and discussed the current and anticipated evolution in legislative, administrative, and judicial frameworks.

（a）What is Agile Governance? -Prof. Habuka

(Photo) Hiroki Habuka, Visiting Professor, Graduate School of Law, Kyoto University

According to Prof. Habuka, since the 1980s there has been a shift in focus from “government” as an entity to “governance” as a function, driven by the recognition that a variety of actors beyond the state now jointly shape societal order. Out of this development arose the concept of Agile Governance, which applies the philosophy of agile development—iteratively building complex systems through small PDCA cycles—to governance itself. In an increasingly digital society, this shift from traditional rule-based governance to agile governance is becoming imperative.

（b）Changes in Societal Premises -Prof. Nishiyama

(Photo) Keita Nishiyama, Visiting Professor, Institute for Future Initiatives, The University of Tokyo

Prof. Nishiyama explained that it is useful to understand modern society as a relationship between “systems” and their “environments,” where order is formed through evolutionary processes. He pointed out that due to digitalization, the speed of system transformation is accelerating, and the assumption that the state alone can establish and maintain order no longer holds. Instead, various actors in society are increasingly shaping order through mutual interaction.

（c） The Need for Governance Reform -Prof. Nishiyama & Prof. Habuka

Prof. Nishiyama expressed the view that conventional top-down administrative mechanisms and legal systems—comprising laws, cabinet orders, ministerial ordinances, and guidelines—are no longer capable of managing the complexity of contemporary issues. In response, Prof. Habuka cited content moderation as an example: digital society presents unprecedented challenges such as balancing freedom of expression with the need to remove harmful content, determining societal expectations for private platform providers, and devising ways to monitor such actors. He argued that traditional top-down legislative and administrative approaches, which involve predefined rules and centralized enforcement, are reaching their limits.

（d）Transformation of Legislation and Administration -Prof. Nishiyama & Prof. Habuka

Prof. Nishiyama noted that society is transitioning from a vertically segmented structure to a layered architecture. In this emerging model, algorithms—deployed not only by public institutions but also by private actors—are becoming embedded in decision-making processes. Decision-making in the digital space is increasingly driven by the cumulative operation of distinct algorithmic platforms, not by the state. As such, he argued that public values previously implemented through legislative and administrative means must now be embedded into these algorithmic processes themselves.

In turn, Prof. Habuka emphasized that in this environment, state-drafted laws must increasingly be principle-based, value-based, and outcome-based. What becomes important is the external verification of whether actors have effectively embedded public values—particularly through procedures that justify their decisions, i.e., ensuring due process.

Building on this, Prof. Nishiyama highlighted two key elements required for governance in a layered structure: (1) While decisions about “what to do” (Do What) may be made on the ground as needed, the “how” (Do How) must be predefined through transparent procedures; and (2) these procedures must reflect stakeholder values, moving beyond mere disclosure to embody broader accountability.

（e）Transformation of the Judiciary -Prof. Nishiyama

Prof. Nishiyama further observed that amid these societal shifts, parts of what the judiciary traditionally handled will migrate into decisions about how algorithms are designed. Beyond the debate of whether decisions are made by humans or algorithms, he argued that from the citizen’s perspective, the value of having a human as the interface for receiving and delivering justice must also be examined independently.

2.VSL and DFFT-Ms. Maiko Meguro & Prof. Tatsuhiko Inatani

In this session, Ms. Maiko Meguro first presented the concept of Data Free Flow with Trust (DFFT), which has gained increasing importance in the realm of international data governance, and addressed its associated challenges. Prof. Tatsuhiko Inatani then introduced the concept of the Value of Statistical Life (VSL) and positioned it as a methodology for realizing the Rule of Law.

（a）On DFFT (Data Free Flow with Trust) – Ms.Meguro

(Photo) Maiko Meguro, Director, Digital Agency, Japan

Ms. Meguro began by explaining the background behind the emergence of DFFT and the challenges it faces.

Given that the collection, storage, and transfer of international data can influence national security and domestic politics, the development of international data governance is an urgent issue. However, countries differ in their views on privacy and security. Moreover, the data ecosystem has a layered structure, and there is no universal solution capable of resolving issues across all layers. In such a complex context, governance must proceed by addressing immediate problems step-by-step. Since around 2021, when tensions among major WTO member states intensified, DFFT has come to serve as a constructive framework. It avoids oversimplified debates over whether to prioritize data flow or privacy, and instead encourages cross-sectoral discussions under the broader umbrella of “data governance,” integrating perspectives from privacy, security, and trade. It also takes into account the practical reality of cross-border data flows, and frames the conditions for data transfer in terms of “trust.”

From this perspective, the Institutional Arrangement for Partnership (IAP) was launched to realize DFFT in practice. The IAP seeks multi-stakeholder solutions to facilitate cross-border data transfers while being directly linked to existing intergovernmental coordination mechanisms at the OECD. This linkage ensures the involvement of participating countries and promotes the implementation of solutions within them. The IAP represents an effort to operationalize agile governance at the international level.

However, one unresolved issue in the DFFT approach—which emphasizes solving immediate problems—is how to justify restrictions on rights such as privacy and security when conflicts arise. This poses a challenge regarding the role of public authority within pluralistic governance. It is a key issue in international data governance, where international (state-to-state) and transnational (cross-border, non-state) relationships intersect. The IAP mentioned earlier represents an attempt to provide one solution to this issue.

（b）On VSL (Value of Statistical Life)-Prof. Inatani

(Photo) Tatsuhiko Inatani, Professor of Civil and Criminal Law, Graduate School of Law, Kyoto University

Prof. Inatani followed with an explanation of the VSL concept.

While AI and IoT are increasingly replacing human judgment and behavior, particularly in high-risk areas, there is no established methodology for determining which forms of machine substitution are permissible and why. VSL provides a framework for such decisions by enabling the calculation of the costs and benefits of substitution, and permitting substitution when the benefits outweigh the costs. VSL is a necessary concept to objectively conduct cost-benefit analysis regarding the difficult-to-quantify value of life. Based on revealed preference theory, VSL uses people’s actual risk assessments to calculate an acceptable valuation of life. When properly implemented, it allows for the objective quantification of the otherwise elusive value of life.

In the era of digitalization—where architectural layers of control are expanding—the Rule of Law can be understood as “governing various powers, including technical architecture, by law based on legitimate justification.” The iterative feedback loops intrinsic to agile governance can be seen as a process for realizing this understanding of the Rule of Law. The traditional governance model, which enforced qualitative behavioral standards in a top-down manner, has its limitations. A new model is emerging—one that sets quantitative goals for policy and regulation and continuously justifies those goals through horizontal and collaborative involvement of private actors.

Through the practical application of VSL, policymakers can quantitatively set policy targets and verify whether those targets are being achieved. Repeating this process enables the advancement of agile governance and extends the reach of the Rule of Law to architectural domains. In this sense, VSL is positioned as a methodology for the Rule of Law.

（c）The Relationship Between VSL and DFFT-Prof. Inatani

Regarding the relationship between VSL and DFFT, Prof. Inatani offered the following explanation.

To effectively implement VSL, access to large volumes of reliable data is essential. Therefore, the ability to utilize trustworthy data through DFFT is indispensable for realizing the Rule of Law. In this regard, the ability to use data appropriately can be considered essential to governance—almost akin to a fundamental right.

Furthermore, VSL is also necessary for advancing DFFT itself. In order to identify the key issues and quantify the associated risks within DFFT, VSL is indispensable. Thus, VSL and DFFT are mutually reinforcing: together, they drive forward the digital transformation of the Rule of Law.

3.The Digitalization of the Rule of Law -Prof.Jouji Shishido & Prof.Satoshi Yamada

n this section, Prof. Shishido began by explaining the connection between agile governance and law and policy. This was followed by Prof. Yamada, who discussed the historical background of the "rule of law" and raised critical points from the perspective of public law regarding agile governance.

（a）On Agile Governance – Prof. Shishido

(Photo) Prof. Jouji Shishido – Professor, Graduate Schools for Law and Politics, University of Tokyo

Prof. Shishido explained the relationship between agile governance and law/policy as follows:

The first point of contact between agile governance and law/policy lies in the shift from rule-based regulation to goal-based regulation. The second point lies in the redefinition of the roles of three key actors—businesses, governments, and communities/individuals—and the linkage among these roles. In particular, in relation to the rule of law, it is argued that the government is shifting from being the designer of rules to a facilitator, and businesses from mere rule-followers to rule-makers. This shifting balance in rule-making between government and the private sector is a key issue in relation to the rule of law.

（b）On the Rule of Law – Prof. Yamada

(Photo) Prof. Satoshi Yamada – Professor, Center for Law and Policy, Graduate School of Law, Kyoto University

Prof. Yamada provided the following explanation on the history of the rule of law:

During Japan’s judicial reform, there was a schematic contrast drawn between the top-down German-style "rule by law" and the bottom-up Anglo-American-style "rule of law," with the latter being the intended direction. However, even in the UK—often considered the birthplace of the rule of law—there has been a tradition of emphasizing top-down decisions through parliamentary sovereignty. Thus, the real issue may not be the schematic opposition between rule of law and rule by law, but rather the tension between top-down legal design and the kind of spontaneous order emphasized by thinkers like Hayek.

Moreover, it is important to remember that historically, the rule of law was in conflict with democracy. According to Brian Tamanaha, the origins of the rule of law lie in natural law invoked by the Pope to restrain the monarch, or in Germanic customary law used by nobles to counter royal power—that is, it originated as a feudal concept protecting vested interests. While its meaning has changed with the rise of democratic legislation, its original tension with democracy should not be overlooked.

（c）The Relationship Between Agile Governance and the Rule of Law – Prof. Yamada

Prof. Yamada then offered the following questions and critiques of agile governance from the perspective of public law:

First, from a public law standpoint, there is concern that agile governance may serve as a pretext for governments to avoid or shift their responsibilities onto the private sector, or for specific ministries to retain control while claiming to delegate authority. This could lead to a new form of collusion or regulatory capture by vested interests. Therefore, measures must be put in place to avoid such pitfalls. Some responsibilities—particularly regarding the structure and procedures of governance and due process protections—must remain within the public sector. When transferring public functions to private organizations, the permissible scope of such transfers must be clearly defined. Similarly, when imposing public responsibilities on private actors, the justification for doing so must be rigorously examined. There is also room to debate whether citizens should be expected to be as proactive as agile governance presumes.

Second, regarding the multilayered nature of agile governance, we must ask whether the state, acting as a facilitator, is truly capable of handling complexity and globalization. Can international or global organizations shoulder part of the responsibility? How can relationships among governance layers be coordinated?

From the perspective of public law—which traditionally emphasizes the distinction between general and special interests—there is concern that the boundaries of stakeholder involvement have not been sufficiently clarified. In terms of technology and institutional design, agile governance that incorporates multiple stakeholders could benefit from referencing theories from adjacent disciplines—such as mini-publics in political science or creative democracy in design studies—while also leveraging digital tools.

Fourth, in terms of the relationship between agile governance and the rule of law, one might argue that the foundational concept of agile governance is, to a certain extent, compatible with a classical, anti-designist interpretation of the rule of law.

4.Regulatory Reform in the Digital Age: Sandbox Approaches and Agile Governance-Mr. Takafumi Ochiai & Mr. Hirohiko Nakahara

This session featured a presentation by Mr. Takafumi Ochiai, who provided a detailed explanation of regulatory reform methodologies and the implementation of agile governance, drawing on concrete case studies. Mr. Hirohiko Nakahara then offered insights into future rule-making approaches based on the sandbox framework and discussed implications for agile governance.

（a）Regulatory DX and Sandbox Approaches – Mr. Ochiai

(Photo) Takafumi Ochiai – Head, Policy Research Institute; Senior Partner Attorney, Atsumi & Sakai (Member of the Daini Tokyo Bar Association)

Mr. Ochiai began by outlining regulatory reform methodologies and the practical application of agile governance based on his involvement in specific initiatives.

In the Regulatory Reform Promotion Council’s report on “Regulations and Systems in the Digital Era,” the shift from specification-based regulations to performance-based regulations was emphasized. Performance-based regulations go beyond simply omitting technical requirements in laws and ordinances. Instead, they focus on the function—such as the existence or behavior of people or objects—and explore whether alternative digital methods can fulfill the same objectives. Examples include reforms related to paper documents, seals, and in-person requirements. These elements were reviewed using a standardized method across ministries and local governments, and the approach was later adopted by the Digital Extraordinary Administrative Survey Commission as well.

Although agile governance was incorporated into the Digital Principles of the commission, performance-based regulation has remained the most effective technique under the legal framework. The accompanying “technology map,” which categorizes regulations by technology type, was developed to complement this effort.

In agile governance, roles are distributed among various stakeholders, with the government acting as a facilitator. Ultimately, whether it's regulatory reform or private-sector efforts, these initiatives must be undertaken proactively by the parties themselves to be effective. Therefore, it is essential to consider how to design incentive mechanisms and to position systems of liability and sanctions as part of that structure. For example, in the field of autonomous vehicles, coordination between regulatory oversight and liability regimes was used to encourage cooperation and improvement, which offers valuable lessons.

While performance-based regulation will likely remain a central method of reform, reviewing civil and criminal frameworks to design incentives that promote proactive action may also become necessary. As these revisions increasingly rely on data, it is critical to establish both methodological and ethical frameworks for data analysis. Still, since data analysis can often lead to inconclusive debate, it is important to empirically validate reforms through phased reviews or pilot schemes. Sandbox initiatives that consider stakeholder incentives will be essential in identifying and implementing still-unknown but socially valuable regulatory innovations.

（b）Public–Private Co-Creation and Innovation – Mr. Nakahara

(Photo) Hirohiko Nakahara – Councillor, Cabinet Secretariat

Mr. Nakahara then discussed the future direction of rule-making and implications for agile governance, drawing on his recent publication Public–Private Co-Creation and Innovation: The Challenges and Future of Regulatory Sandboxes (Bestbook, 2024).

He noted that when altering regulatory frameworks, it is necessary to demonstrate the necessity and acceptability of institutional changes. However, public authorities responsible for making such determinations are often organized and staffed based on existing industries and current technological standards, making such demonstrations difficult. Regulatory sandboxes serve to bypass these constraints by allowing for time-limited, participant-specific experimental implementations of new technologies and business models. These pilots collect case studies and data that can form the basis for future regulatory reforms through empirical policy dialogue with the market.

In practice, many sandbox experiments rely not on clearly codified statutes but on interpretive frameworks, using performance-based reasoning to determine whether legal requirements are substantively met.

Looking ahead, the government may need to reconsider its emphasis on clarity over flexibility in rule-making. Rigid, fully codified rules are not always ideal. Vague or open-ended provisions should not necessarily be viewed as flaws, but rather as mechanisms through which law anticipates emerging situations. What matters is how such provisions are co-developed with stakeholders. Policymakers should recognize the value of “accountable ambiguity” in legal design.

Although the concept of agile governance is sound, transitioning from hard law to soft law does not automatically lead to agile regulation. One must also contend with the “inertia” embedded in legal systems: the persistence of legal syllogism, traditional regulatory approaches, respect for precedent, and the drive for predictability and order.

The detailed discussion from this symposium is scheduled to be published as a book by Yuhikaku Publishing. Further information will be posted on the News page when available.

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