Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR. Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting...
The Electronic Silk Road is a fantastic read, literally bridging Bangalore with Silicon Valley, showing us how the activity of trade has dramatically changed and how these changes require us to think about “Trade 2.0” rules. Prof. Chander discusses both private and public law issues, domestic and international rules.
I want to focus my comments on international trade law rules, of the WTO type, that is, the rules imposed by treaty on governments, which generally prevent governments from doing certain things (e.g. prevent them from restricting trade or enacting domestic laws that discriminate against foreigners). 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. Although Silk Road describes in detail what has changed and sets out basic principles as to how rules could respond to these changes, I was, at times, missing a level of detail allowing us to make progress on the ground.
I see two main types of governmental actions that need curtailing by trade rules. First, governments restricting the flow or storage of data across/outside their territorial borders (e.g. a country requiring that Google or Citibank store all of its data within the country, or a country stopping or censoring the flow of information/network connection coming from/going abroad). Second, governments taking, or eavesdropping on, information stored or transferred by companies or individuals in (or even outside) their territory (e.g. a country forcing Facebook to hand over certain data or “spying” on data transferred over the internet).
Are today’s WTO rules able to reign in these two types of government interventions with the toolbox of either rules on “trade in goods” or “trade in services”?
[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month. “The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it...
Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction: In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.”...
[w]ith respect to the jurisdiction issue, we have great respect for Afghan sovereignty. And we will respect it, completely. And that is laid out in this agreement. But where we have forces in any part of the world, and we unfortunately have them in a number of places in the world – in Japan, in Korea, in Europe, in other parts of the world, Africa. Wherever our forces are found, they operate under the same standard. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require.Despite valiant Department of State attempts to “clarify” the Secretary’s remarks, the Washington Post initially awarded Sec Kerry “two Pinocchios”, meaning his statements at the Afghanistan press conference contained significant omissions and/or exaggerations. Kerry then stripped away language which could be mistaken for accurate in an October 17th National Public Radio interview, claiming that “[There] is the question of who maintains jurisdiction over those Americans who would be [in Afghanistan]. Needless to say, we are adamant it has to be the United States of America. That’s the way it is everywhere else in the world.” This streamlined version of untruth prompted the Post to elevate Sec Kerry to a “three Pinocchios” award for “significant factual errors and/or obvious contradictions.”
Sec Kerry’s false jurisdictional equivalency claims undermine his, and the U.S’. credibility, as well as Afghan President Hamid Karzai’s ability to explain the BSA to an upcoming Loya Jirga, whose approval is needed if U.S. troops are to remain in Afghanistan after 2014. Successfully concluding the BSA now depends on the Loya Jirga not realizing that any reliance on representations by the U.S. Secretary of State is misplaced. This bodes poorly for the agreement, and the strategic partnership between the two countries.
Anupam Chander's new book, The Electronic Silk Road is an admirable scholarly achievement. Chander draws our—the global community of cyberspace users—attention to the increasing globalization of information-based services. He discusses the pros and cons of what he calls cybertrade or Trade 2.0, or more specifically, net-work, with much clarity, drawing on a wide array of examples, ranging from North to South. The book provides a rich description and timely observations, as well as a sound and coherent set of principles to address the new challenges. The book is a highly important contribution to the discussion about international trade, globalization studies, and to the on-going debate about the role of the law in a dynamic technological setting. In fact, Chander paves a new path in these discourses.
The trigger is the observation that alongside global trade of products, we increasingly experience net-work, which is (p. 2) "information services delivered remotely through electronic communications systems." Importantly, these services are provided in both directions of the North-South global division. Net-work raises a regulatory challenge: which law should govern? Chander examines various options—should it be the law of the country that exports the services or the law of the importing country? His judgment favors the latter: "importing of services should not require us to import law as well" (p. 6). In other words, he would require global service providers to conform to the local law at the country of destination. This is the principle of glocalization, as applied to cybertrade, which he elaborates in Chapter 8. Glocalization's role is to curtail the race to a deregulated bottom: under a legal regime that allows global service providers to apply their own law, i.e., the law of origin, they are likely to choose and operate from the most convenient regime, to their benefit, at the expense of the global consumers. Glocalization does not allow this race. Importantly, Chander insists that glocalization should be consistent with international norms and is supplemented by harmonization, where possible.
Glocalization is the meeting point of the global and the local.
This week, we are pleased to host a symposium on The Electronic Silk Road (Yale University Press) by Anupam Chander (UC Davis). The publisher's description is: On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents,...
Calls for Papers The Journal of World Investment and Trade (JWIT) is under new editorial responsibility starting with the first issue of 2014. It operates as a double-blind peer-reviewed journal and focuses on the law relating to foreign investment relations in a broad sense, including the law of investment treaties, investor-State dispute settlement, domestic law relating to foreign investment, and relevant...
Guest commentary here at OJ by Adam N. Steinman (Seton Hall) on the Supreme Court's oral argument in Daimler AG v. Bauman, along with earlier comments on the case by John Bellinger at Lawfare, have been helpful to me - no expert in civil procedure, certainly - in understanding issues of jurisdiction in Daimler, Kiobel, and other such cases. As Professor...
