[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. (more…)