Software and data operate in binary code that changes very little, if at all, for borders (excluding homeland security issues for some software). Therefore, global problems are generated by defects in data or software. VW is the current poster child for this reality as it now has acknowledged global issues involving some 11 million cars, and billions in new reserves. VW’s share price also is down some 30-40%.
Consider the possibilities ahead for this and other, future global scale failures in software and/or data. And in thinking about data, keep in mind the massive amounts of data associated with drugs, diagnostics. As for software, keep in mind the amounts of software and information now imbedded in other manufactured goods; think especially about future self-driving cars from Google, Apple, Tesla or others. Think also about the ever-growing volume of communications between devices via the Internet of things.
Shareholder lawsuits could be filed in many nations. Recalls may be ordered by regulators in many nations. D&O claims could be made around the world. Directors and officers of affiliate entities may disclaim any knowledge of actions that perhaps took place only at world headquarters, and may seek indemnities or other remedies. Criminal sanctions also may be proper. Suppose one country wants to jail the guilty for life (VW’s CEO has said “grave errors” were made by a few); what happens to civil cases around the world if the guilty cannot be called to testify at trial because they are in jail outside the US?
In a fine irony, VW’s woes arise at the same time Justice Breyer is promoting his new book: The Court and the World. VW’s woes prove his point; the US is not an island and the Justices of SCOTUS must be cognizant of and willing to seriously consider and respect legal rules enunciated by other nations.