Book Symposium The Electronic Silk Road: Reply by Anupam Chander

by Anupam Chander

[Anupam Chander is Professor of Law at The University of California, Davis]

I am honored to have such a brilliant and prominent set of interlocutors from across the world discussing my book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. I am grateful for the sharp insights each of my commentators brings, and humbled by the praise they offer. Each of the commentators has selected a different aspect of the book to focus on in his or her remarks, and so I will respond to each in seriatim, chronologically.

Professor Michael Birnhack (Tel-Aviv) focuses on glocalization—the conforming of a global service to the local laws of the countries that it serves. Professor Birnhack is familiar with this phenomenon, having studied it himself in connection with the transfiguration of global copyright as it encounters local norms. Both glocalization and and its limiting principle—harmonization—are highly complicated processes. Professor Birnhack wisely observes that glocalization and harmonization are both subject to power variations across the world. This is an important insight—certain countries, industries, corporations, transnational organizations or interests are likely to hold more sway than others in determining any eventual balance between glocalization and harmonization. That would probably be true even if there were a global plebiscite, a possibility that seems quite remote. But Professor Birnhack notes that these shortcomings in the glocalization and harmonization principles I suggest do not render them unwise, as other alternatives are likely to prove worse along the metric he describes.

The University of Bern’s Mira Burri , editor with Professor Thomas Cottier of an important collection of papers on digital trade governance, elegantly describes the major shifts in international trade made possible by the Internet. Her broad perspective makes her an ideal interlocutor. She strikingly observes that “we are faced with a radically ‘messy’ governance landscape with many and overlapping institutions and actors of state and non-state nature, the effects of whose actions transcend national boundaries and cannot be neatly contained and controlled.” She characterizes the principles proposed in The Electronic Silk Road as follows: “The freeing of trade is matched by a batch of principles of regulating trade that are meant to ensure balance, provide for security and trust in cyberspace.”

I proposed that Opinio Juris invite Professor Paul Stephan (Virginia) because I admire his writing and hoped for a critical voice, and he hasn’t disappointed. While he lauds my “apt and vivid” accounts of the new face of international services, he seeks either a “positive theory that links legal developments to social conditions” or a “normative vision of the world that will inspire us to correct unseen problems and cash out unrealized opportunities.” While I have not delivered a simple solution to decide all future cyberlaw disputes, I have proposed a normative vision, detailed the existing international economic law and its lacunae, and described fundamental principles for approaching future disputes. I have done so in ways that former World Trade Organization Director General Mike Moore, currently New Zealand’s Ambassador to the United States and formerly Prime Minister, declares “visionary,” that Jagdish Bhagwati calls a “tour de force,” the Financial Times lauds as “important,” and that companies from Google to eBay find useful in their own work. He suggests that the book “does not have a more general story about what explains th[e] growth” in the information sector of the global economy, but I in fact spend one chapter (“The New Global Division of Labor”) describing the Internet’s radical transformation in Ronald Coase’s foundational question of make-or-buy (underlying the theory of the firm), leading to the splintering of global supply chains (to borrow Jagdish Bhagwati’s term). Moreover, at least three chapters focus on how law helps or hinders the information economy—including sections literally titled “How Law Made Silicon Valley” to “The Rise of the Indian Multinational,” and another on the role of “Great Firewalls” in undermining China’s global ambitions in international trade in information services. He explains that I “recognize[] the liberating potential of a liberal international regime, but want[] to preserve local policy[-making],” but he seems to think that this is a fool’s errand, or somehow incoherent. But the World Trade Organization’s General Agreement on Trade in Services is founded on exactly this balance (see, e.g., the opening recognition of each member state’s right to regulate). And nowhere do I claim that “moving from the abstractions of [human rights] instruments to operational rules is … automatic.” Nor do I suggest that “WTO dispute resolution [is] the first place [to] look when considering China’s evolution.” Rather I argue that trade law has the potential to help liberalize not just the movement of goods, but also information. He complains that I don’t cite Kiobel, by which he means the Second Circuit decision in that case (holding that corporations cannot be sued for human rights violations under the Alien Tort Statute), not the Supreme Court’s 2013 decision, which as he knows refused to endorse the reasoning of the Second Circuit, reasoning which remains a minority view in the circuits. For my paper on the Supreme Court decision in Kiobel, forthcoming in the American Journal of International Law, see here. I have discussed the relationship of globalization and democracy in an article in the Yale Law Journal titled “Globalization and Distrust.”

Molly Land (Connecticut) focuses in part on the human rights aspects of my book. An important scholar of international human rights law as applied to the Internet, Professor Land finds intriguing potential in my suggestion that trade law might be useful for human rights purposes. She agrees that the requirement of transparency in the laws that govern services might prove “incredibly powerful in challenging repressive policies because it will enable advocacy and organizing.” So could the requirement of national treatment, which might prevent states from barring foreign services in favor of domestic ones. She kindly describes my “pairing of glocalization and harmonization” as “one of the most sensible and balanced approaches I’ve seen with respect to … tensions” between global information flows and local law.

Joost Pauwelyn (Graduate Institute, Geneva) begins with a crucial observation, one I also had when I attended the World Trade Organization’s World Public Forum in Geneva earlier this month, but which he has stated far more eloquently than I could have: “When discussing ‘rules’ and the internet, internet companies get nervous: they assume that the rules will limit them and thereby limit innovation.  The rules I am talking about here are limiting what governments can do and, in general, are there to protect or enable (not restrict) internet-reliant companies.” Trade laws largely prevent governments from burdening foreign suppliers, and thus global Internet companies should recognize their value to freeing trade, including trade in information services. WTO interventions then do not portend the WTO seizing the reins of Internet governance, but rather efforts to deter governments from protectionism in this area. Professor Pauwelyn asks a number of fundamental questions, such as: what is a service? I believe that we should define services expansively to include a tweet or a Weibo message and Wikipedia or other web searches. I accordingly agree with Professor Pauwelyn that more international treaty-making in the digital trade area is likely to be useful.

Jake Colvin of the National Foreign Trade Council focuses on the “great promise of the internet to democratize global trade.” He observes the crucial role of the Internet in enabling old-fashioned trade in goods. Companies such as eBay and Alibaba empower buyers and sellers across the world. As Colvin writes elsewhere, because of the Internet, “Mom and Pop Go Global.” I also agree wholeheartedly with Colvin’s call for “developing new international trade rules – and enforcing those that are already on the books – to commit countries to avoid discriminating against global flows of information, to permit companies to transact business through e-commerce platforms without establishing a commercial presence in each country, and to prohibit requirements to use local computing infrastructure, such as servers, as a condition for doing business or investing.” Protectionism by one country will only engender retaliation by others, all the while denying consumers and businesses access to the world’s most competitive services at a reasonable price.

Again, I am deeply grateful to these half-dozen experts who have taken the time to write both appreciations and critiques of my work. I look forward to further dialogue with them and others on the issues they have raised.

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