New EU Model Contractual Clauses Offer Guidance and Protection for AI Procurement
With the draft EU AI Act making its way through trialogues and the understanding that AI procurement requires careful consideration, organizations are facing tough choices on how to responsibly source AI and protect themselves in a developing legal landscape. To tackle these challenges, a multi-stakeholder group within the European Commission has released a new proposal for standard EU model contractual clauses for AI procurement.
The model clauses consist of two templates that align with the risk classification outlined in the draft EU AI Act. One set is designed for non-high-risk AI uses, while the other is for high-risk AI systems. These clauses serve as schedules to existing contractual agreements and are not standalone documents. They can be accessed here for reference.
The clauses include provisions that establish essential requirements for AI systems before delivery. These requirements encompass the implementation of risk management systems by the supplier, the adoption of data governance models for training datasets, and compliance with ethical standards. Additionally, the clauses outline obligations for the supplier, such as the deployment of quality management systems to ensure compliance with the specified provisions. They also include stipulations on the use of datasets by the acquiring company or public authority, the supplier, and third parties.
Several annexes accompany the model clauses, providing detailed information on the AI system’s purpose, description of the used datasets, technical documentation requirements, instructions for use, and measures taken to ensure ethical compliance.
The high-risk version of the model clauses introduces additional obligations for the supplier. This includes conducting a conformity assessment to ensure compliance with the provisions, implementing corrective actions in case of non-compliance, and cooperating in audits. The issue of the supplier’s liability in the event of claims by third parties is also addressed.
It’s important to note that the model clauses solely encompass provisions specific to AI systems and do not cover obligations or requirements arising from other applicable legislations, such as the GDPR. Their purpose is not to offer a comprehensive set of prescriptive drafting but rather to grant contracting parties the responsibility of assessing the adequacy and proportionality of each section based on their specific context.
Initially, the clauses were designed to address the concerns faced by public authorities procuring AI systems. However, they can serve as a valuable benchmark for private organizations looking to align their contractual provisions with industry standards.
By adopting these model contractual clauses, organizations are encouraged to establish procurement procedures that prioritize innovation and place emphasis on accountability and transparency throughout the process. It’s important to note that their adoption is voluntary.
While the model clauses are a significant step towards addressing the challenges associated with AI procurement, they are not a comprehensive solution. The rapidly evolving regulatory landscape requires organizations to approach the sourcing of AI technology with a comprehensive strategy. Nonetheless, these model clauses provide a starting point to determine the direction organizations have taken thus far.
In conclusion, the introduction of the new EU model contractual clauses for AI procurement offers organizations much-needed protection and guidance in navigating the complexities of this rapidly advancing technology. By adhering to these clauses, organizations can ensure responsible sourcing, implement appropriate risk management systems, and comply with ethical standards. While the clauses are initially aimed at public authorities, they can serve as a valuable resource for private organizations to assess and enhance their contractual provisions. As the trialogues on the draft EU AI Act near their conclusion, these model clauses present an important development in establishing a solid legal framework for AI procurement.
