Navigating The Electronic Silk Road: How the Web Binds the World Together in Commerce
In The Electronic Silk Road: How the Web Binds the World Together in Commerce, Anupam Chander has helped to illuminate any number of debates that surround the growing trade in online information services (a phenomenon that he calls “net-work”). The range of legal and political issues implicated by trade in online information services is vast and some are quite arcane. Yet, Chander brings them together beautifully in a wonderfully accessible book that is very readable without being simplistic. He does not purport to offer a single solution to the challenges of trade in online information services. (Indeed, I would be suspicious of anyone hawking a single solution to what is an incredibly complex problem.) Instead, he suggests a framework for recalibrating the balance between local and international norms (and institutions) in ways that take account of the special features of online commerce (and online social interactions, for Chander is continually alert to the ways that trade and commerce can positively contribute to broader social policy objectives). Chander recognises that to understand the complexity of regulating (or de-regulating) the provision of online services, one has to take account of any number of institutions or devices: thus he dissects rules on conflicts of law (jurisdiction, choice of law, and recognition and enforcement of judgments), and international economic law (most notably GATS), while also taking due account of private ordering by large online players and the global power of consumer pressure. He paints a messy picture, but it is messy because it is rich. One has first to accept that messiness and complexity, in order to address the problems of activity that (arguably) simultaneously occurs nowhere and everywhere.
Perhaps the biggest single contribution that Chander makes is to suggest that these disparate legal devices can be considered through a single analytical framework, which he develops using a number of core propositions and concepts. The most important of these, which I discuss below, is the concept of “glocalisation” (not new, but adopted and adapted by Chander) and harmonisation (also not new, of course). The framework does not suggest any concrete solutions (with a couple of exceptions). But that would be too much to expect. Nor will it resolve some of the most acute tensions between international norms and local (national) sovereignty. But that would be too much to ask. It does ask us to think differently about how to address those tensions.
It is the interaction of glocalisation and harmonisation that is at the heart of the book, and on which I will focus my post. The core proposition that Chander advances is “Harmonise where possible, and glocalize where necessary.” (p 191). By this proposition, I read (based on his uses throughout the book rather than how I would use the terms, as discussed below) to mean that we should strive for global norms so as to take advantage of the efficiencies (and other social benefits) of universalization, but allow local (mostly national) norms to apply where important to preserve important values on which local communities may disagree (provided such values are broadly consistent with fundamental international norms, such as human rights commitments). In some respects, this is not a radical proposition. Most of international law consists of calibrating the balance between the national sovereignty and international norms.
However, in two senses Chander’s proposal is quite radical.First, he recognises this tension pervades any number of legal rules and institutions, not just public international law. Thus, he seeks to apply his basic tenet to conflicts rules, as well as rules that facilitate global transactions. This is radical insofar as it is not the starting point for conventional private law analysis generally. Chander is not alone.
There are scholars who have proposed approaches to choice of law, for example, that seek to bring this policy choice to the forefront of doctrinal analysis. (I proposed a substantive law approach to copyright choice of law problems in A New Copyright Order which sought to elevate international norms, but differed in that it sought to use the choice of law analysis to create soft versions of those norms). But this is still a minority view. Most of the conflicts debate revolves around the localisation (not glocalisation) of a transnational dispute in a single country, holding to the need to find a single applicable national law (perhaps regardless of extraterritorial effects). Chander is appropriately looking for something more accommodating of the multiple interests at play in online services cases. In that regard, Chander’s reading of the ECJ decisions in eDate and Martinez (pages 133-134) is especially illuminating. He reads those cases (as I do) as dependent upon the compromise between jurisdiction (on which the Court was liberal) and choice of law (where the place of the establishment of the provider would apply, even abroad). Unfortunately, later cases (Wintersteiger, and more puzzlingly a few weeks ago, Pinckney) have detached the jurisdictional test from that context (albeit while recognising the differing nature of copyright, trade mark and personality claims). A more nuanced resolution can be found if it accepted that there is complicated matrix of interacting variables that effectively determine the regulatory competence over an issue. (And Chander also appropriately brings substantive harmonisation into the mix; some of the EU choice of law rules work only because of harmonisation in the relevant field – the Cable and Satellite Directive being a notable example). This approach tends to make for short-term complexity, relying on concepts such as restraint (page 138, on which I agree – see my article on Developing Private International Law of Intellectual Property) rather than bright line rules. But it is an approach that will in the long-term make for smoother accommodation of the multiple competing interests that characterise these cases.
While I am sympathetic to Chander’s efforts to place the balance between international and local norms at the centre of our legal thinking, I am more sceptical of what I see as a second radical feature of the glocalisation and harmonisation analysis. Some of this might flow from how I think Chander reads “harmonisation”. Especially within Europe, harmonisation tends to mean maximum harmonisation, or something approaching unification or uniformity. And this makes sense (or did so when the EU was smaller) given greater homogeneity among the membership. But at the international level, I have always understood harmonisation to connote something closer to convergence. That is, international harmonisation has only rarely sought to define the law that will apply in particular states; rather it works to confine the choices that states have. States typically have plenty of choice for local variation, even operating under a harmonised regime. Chander appears (though he never says this explicitly, and it is inconsistent with his celebration of diversity at a number of points in the book) to conceive of harmonisation as closer to uniformity, because this is what secures and enables the gains of globalisation; glocalisation is instead what acts as the safety valve against undue homogeneity. But if this is his sense of “harmonisation” – and arguably even if he means to use the term in a softer conventional sense – the maxim “Harmonise where possible, and glocalize where necessary” seems to me to switch the basic default of international law, taking uniformity as the starting point. I have no doubt that the balance has shifted – on this, Chander is immensely persuasive. But, as he himself highlights at different parts of the book, there are enduring political and cultural values underlying difference. (Indeed, the sociological invocation of “glocalisation” sometimes seems designed to counter homogeneity for its own sake; those definitions or uses of the term seem less dependent on necessity than Chander’s concept). I agree entirely that we need to question the conventional default of territoriality, and recalibrate the balance between local and global. But I think this will be a long, ongoing process, effected by the tools of restraint and accommodation that Chander advocates. I wonder whether it remains premature to embed a reversed default position in our analytical approach to the local/global tension, and look forward to hearing more from Chander about how much he truly wishes to effect that reversal. My disagreement on Chander’s maxim may ultimately be one of emphasis, but it is an emphasis that I think important. I am not sure there is a generalizable default of when law (because the beauty of Chander’s concept is that it is transcendental) should tend to the global. I think there are many variables relevant to that question, many of which are wonderfully illustrated in this fascinating book.