In association with the International Commission of Jurists

Chevron and the Rise of Arbitral Power: An Introduction by Michael D. Goldhaber

28 Oct

[Michael D. Goldhaber serves as Senior International Correspondent and "The Global Lawyer" columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon.] The ongoing media circus surrounding the Chevron v. Donziger trial in New York federal court makes it easy to forget that the arbitration between...

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27 Oct

Events On November 12, the T.M.C. Asser Instituut in The Hague will launch the International Crimes Database (ICD). This platform offers a comprehensive database on international crimes adjudicated by national, international and internationalized courts and will provide access to a range of information not just for lawyers and judges but also for students, academics, families and communities of victims of crimes,...

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27 Oct

[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.

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26 Oct

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY's recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi's ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House's Elizabeth Wilmshurst was the moderator. I don't believe the symposium...

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25 Oct

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence. It's decisions like these that make...

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24 Oct

[Jake Colvin is Vice President of Global Trade Issues at the National Foreign Trade Council.] How is global trade different in the digital age? As Anupam Chander makes clear in his new book The Electronic Silk Road, the internet is changing who trades, what is traded, and how we trade, all of which have implications and complications for businesses, consumers and policymakers. Upfront, his book outlines the great promise of the internet to democratize global trade.  Businesses and entrepreneurs around the world can hang a digital shingle to offer goods and services online to a global audience, and consumers and intermediary businesses have new options for tapping into information, goods and services from far away.  While Chander focuses much of his attention on what he labels net-work – functions like medical services from India and customer service operations from the Philippines that can be done anywhere with increasing ease – to illustrate the effect that the internet is having on who trades and what is traded, it is worth putting a finer point on the role that the internet is having on trade in goods. Thanks to cloud, logistics, financial and related services that reduce the red tape associated with international transactions, small businesses and entrepreneurs can participate in global markets from an early stage on a broad scale for the first time in history.  Many of them are using the internet to sell physical things. Take Maryland-based Kavita Shukla, who founded a company called Fenugreen that manufactures a low-cost solution to keeping produce fresh for up to four times longer.  She can connect, market and sell her product around the world thanks to services provided by companies including BigCommerce.com, Google, Intuit and UPS. The online craft marketplace Etsy reports that over 25 percent of its transactions are international.  eBay has produced several studies that quantify extraordinarily high participation of the commercial sellers that operate on its platform in the global marketplace.  The electronic silk road is a critical conduit for physical goods as well as services. Amid this opportunity, Chander deftly highlights and makes sense of a number of issues that businesses and governments are confronting as they dig into the complexities of engaging in global trade in the digital age,
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23 Oct

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva]

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”?

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23 Oct

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.”...

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23 Oct

[Molly Land is Professor of Law at the University of Connecticut School of Law] I’m delighted to be able to take part in this online symposium dedicated to Anupam Chander’s new book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. Chander’s book masterfully brings together a set of debates about technology, privacy, and human rights to consider the pitfalls and promise of regulating Internet trade. In an accessible and engaging way, Chander reorients our thinking about the Internet by locating it firmly in the trajectory of global commerce. While attending carefully to the unique challenges posed by both digitization and networks, he persuasively demonstrates the continued vitality of established doctrines in conflict of laws, trade, and international human rights with respect to some of the most pressing problems we face today in Internet regulation. To my mind, one of the book’s most interesting and compelling contributions is its discussion of the relationship between trade in services and human rights. Chander rightly notes that trade in goods and human rights have long been in tension with one another, as liberalization of trade is often associated with labor rights violations and other human rights abuses. Trade in services, however, might be an unexpected ally of human rights causes. Information and communication technology companies are providing services, and liberalizing the flow of those services across borders promotes human rights both directly (in the form of freedom of expression) and indirectly (in the form of greater political liberalization). Chander argues that given this relationship, the General Agreement on Trade in Services (GATS) might be considered a human rights document. Trade law can be an ally of human rights causes in two ways, Chander argues. First, the principle of national treatment limits the extent to which states can discriminate against foreign service providers, including information services. Second, the transparency provisions of GATS could be used to require states to disclose how they are regulating information goods. I think the second of these—the transparency argument—could be incredibly powerful in challenging repressive policies because it will enable advocacy and organizing. It is especially difficult for citizens to hold states accountable for their policies in the area of information and communication technology because such regulation is often invisible. To the extent trade law can be used to make some of this regulation more transparent, that would be a significant gain. This is particularly the case with respect to governments like China that use vague censorship restrictions to incentivize Internet service providers to overblock. I was also intrigued by the argument that national treatment could be employed in service of human rights.
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22 Oct

[Mira Burri is a  senior fellow and lecturer in law at the University of Bern, Switzerland.] In early October this year the World Trade Organization (WTO) held its annual Public Forum typically devoted to topics that are key to the world trading system and particularly high on the agenda of the community of the WTO’s 159 Members. The theme of this year’s edition was uniquely framed under ‘Expanding Trade through Innovation and the Digital Economy’. To some observers, the topic appeared somewhat detached from the WTO’s core mandate and daily business and distant from burning concerns, such as financial crisis responses, poverty or other development-oriented actions that demand the concerted effort of the global community. Yet, the casual observer may be mistaken – at least in two aspects. The first is more evident and has to do with the deep impact that digital technologies, and specifically the Internet, have had and continue to have upon numerous facets of societal life. The associated transformations range from the trivial to the momentous – from online shopping, through the emergence of global value chains, to the very ways we work and write, create, distribute and access information − bringing distant geographical locations within instantaneous reach, millions of people organized within hours, encyclopaedias and virtual libraries produced on a collaborative basis. The world of brick-and-mortar trade, of freighter shipments, border inspections, duties and stamps, has also been thereby profoundly changed. For the first time is trade in services unleashed on a global scale, and this definitively goes beyond the classic ‘the world is flat’ example of outsourcing call-centres to India. The second aspect is more illusive and possibly escapes a clear-cut answer. It has to do with the regulation, or to put it more broadly – with the governance, of the so emerged world of cyber-trade. Who, if anyone, is in charge of it? Does jurisdiction matter and if yes, how does it matter? And then also and more fundamentally, is this cyber-trade, as an extreme and sweeping expression of globalization, something that we should cherish and foster, or rather restrain in order to preserve non-economic and possibly more critical interests, such as national security, freedom of speech, and privacy – both in the online and in the offline spaces?
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21 Oct

[Michael Birnhack is a Professor of Law at Tel Aviv University]

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.

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21 Oct

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,...

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