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Category: International & Comparative Law

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The Long Arm of US Law Enforcement

Joaquin_Guzman-Loera

The front page of today’s NY Times reports on yesterday’s arrest of the notorious drug lord Joaquín Guzmán Loera, aka “El Chapo.” Although the raid was carried out by Mexican forces, the Times reports that they were “aided by information from the United States Drug Enforcement Administration, immigration and customs officials and the United States Marshalls Service . . . .”  It is unclear whether Guzmán will be extradited to the United States.

The raid brings back memories of when the US took a more direct route to capturing fugitives in Mexico: the 1990 capture and transfer to the United States of Humberto Álvarez-Machaín by Mexican nationals at the behest of the US Government. Read More

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Who’s a Pirate?

occupations_pirate

For anyone who served as a faculty advisor or judge for the recent Jessup International Law Moot Court Competition pirates have likely been on your mind because of the issue in this year’s compromis as to whether Oscar de Luz is a pirate.

Pirates are also in the news as well, and not just because of Captain Phillips’ Best Picture nomination. As Milena Sterio writes over at IntLawGrrls, “United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.”

Turning to another piracy case, the opinion in U.S. v. Said makes for fun class discussion when teaching statutory interpretation as part of a Criminal Law course. It turns out neither owning a parrot nor saying “Yarrrr, Matey!” are necessary or sufficient for piracy. So have fun on September 19 each year for “International Talk Like a Pirate Day” without fear of prosecution!

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Xi and Putin BFF?

China Flag Russian Flag

Images of Chinese President Xi Jinping sitting cozily with Russian President Vladimir Putin at the Sochi Olympics opening ceremony not only emphasized that a number of heads of state were not in attendance, but also highlighted the complex Sino-Russian relationship. Putin—certainly not the most gregarious or affable of world leaders—even equated Xi’s trip to a “visit to good friends.” And China’s official People’s Daily newspaper reports, “Mr. Putin cheerfully recalled the experience when he and Mr. Xi drank vodka together to celebrate his birthday last year. ‘I know that I have many friends in China,’ Putin said. ‘It is not surprising, because we have special relations with China, and I have special feelings for China.’”

Sino-Russian relations have not always been so cordial. Upon tossing out all of the bourgeoisie laws of the capitalist running dogs when founding the People’s Republic of China in 1949, Mao Zedong understandably looked north to the USSR for inspiration in shaping the PRC’s legal system. The influence remains today, for example in the use of a procuratorate (or “procuracy”) to prosecute cases and oversee other aspects of the legal system. Since Khrushchev’s process of de-Stalinization diminished Mao’s confidence in his neighbors to the north (and created concerns about possible de-Maoization at home), Sino-Russian relations have periodically waxed and waned. Today, China and Russia are the two largest members of the Shanghai Cooperation Organization and China is Russia’s largest trading partner.

In late 2012 when Xi Jinping took over as General Secretary of the Communist Party of China—his more important title than “President”—questions understandably arose about what type of leader he would be. Xi’s first state visit was to Russia, and Xi has commented that he and Putin have similar personalities. It is too early in Xi’s tenure to say whether he will closely emulate Putin’s strong man persona. Nonetheless, it is looking increasingly unlikely that he will be China’s Gorbachev.

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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The TPP and Copyright

This is my second post about the leaked draft of the Trans-Pacific Partnership Agreement.  Here, I address some of the copyright provisions. This is not an exhaustive analysis, and I’ve tried to make it complimentary to what’s already out there. For analysis of additional provisions, see KEI, Public Citizen, Ars Technica, Kimberlee Weatherall for an Australian perspective, and EFF. [Note: I have updated this post .]

First, there are major splits between countries. The United States consistently takes the position of pushing for stronger IP, while others—especially Canada and New Zealand— advocate a more balanced approach.  The divisions are particularly prominent when it comes to preliminary statements about the public domain and public health, none of which the U.S. supports.  These analyses are on one subset of proposed language, not finalized language, and a lot of the agreement could change. I focus my analysis primarily on the U.S. proposed language.

Second, the U.S. proposals look very similar to our past Free Trade Agreements, including the earlier texts of ACTA.  Whatever message was sent when the EU refused to ratify ACTA, the U.S. Trade Representative did not receive it.  Many of the provisions that appeared in ACTA are also areas of proposed reform in the United States—the U.S. proposed text for the TPP would internationally bind this country and prevent many proposed reforms to our copyright law.

Third, and this is an important point: U.S. proposals are less balanced than U.S. domestic law. As I noted in my previous post, this is because a subset of IP industries provide the USTR advice, leaving out important balancing viewpoints and sometimes misrepresenting U.S. law.

Similarities to ACTA:

Intermediary liability (Article QQ.I.1): As in ACTA, the central copyright argument in TPP is over what kind of intermediary liability regime will be internationally required.  Currently, online intermediary liability is not governed at an international level.  Michael Geist has done a great job of outlining the basic differences in the TPP proposals for intermediary liability. The United States is pushing for notice-and-takedown, with a coalition of countries, including Canada and New Zealand, pushing instead for a notice-only provision.  These regimes offer different levels of due process for Internet users.

Statutory damages (ARTICLE QQ.H.4.Y(15)): As in ACTA, countries are fighting over statutory (or “pre-established”) damages: damages awarded to copyright owners without a showing of actual harm.  Australia opposes this provision because it does not have statutory damages. Statutory damages are an often-criticized part of the U.S. regime, enabling disproportionately large awards in copyright cases.

Criminal liability (Article QQ.H.7(2)): As in ACTA, countries have split over the definition of criminal copyright infringement.  The U.S. proposal, like U.S. law, pushes to criminalize very low level infringement, to go after even low level filesharing.  Other countries want to keep it at the international requirement, which requires a motive of financial gain or commercial advantage.  The United States lost a recent WTO case on criminal copyright, and has since been trying to ratchet up international criminal copyright law through free trade agreements.

Criminal Intermediary liability (Article QQ.H.7(6)): As in ACTA, the TPP criminalizes aiding and abetting infringement. This allows authorities to go after websites under criminal law, rerouting around protections from civil liability. Coupled with a low underlying threshold for criminal infringement, this could sweep in a lot of activity. Thanks to Kimberlee Weatherall for catching this.

Asset Forfeiture (Article QQ.H.7(c) p. 79): As in ACTA, the TPP allows the seizure of “any related materials and implements used in the commission of the alleged offense”. In the United States, asset forfeiture has been used to seize websites before trial.

DRM/Technological Protection Measures (Article QQ.G.10): As in ACTA, the United States is trying to export the DRM provisions of the DMCA, as its version of implementation of the WIPO Copyright Treaty. As I note below, however, what’s proposed is a worse version of what we have at home. The recent conflict over cell-phone unlocking shows that this is likely to be the focus of domestic policy reform. Some suggest that the DRM provisions here criminalize unlocking even when the underlying purpose is fair use.

De minimis border measures (the “Ipod search”)( Article QQ.H.6(8)): As in ACTA, the United States is pushing to shrink the “personal use” border exception that currently exists in international law, in TRIPS Article 60.  For now, however, it looks as though the de minimis provision is functionally the same as TRIPS, due to a strategic footnote (235).  This is something to watch.

Account termination (Article QQ.I.1(p. 88)): In U.S. copyright law, there’s a provision requiring online intermediaries to have a termination policy in place for repeat copyright infringers. Similar language has been proposed in the draft TPP. As Annemarie Bridy has pointed out, this language may have different implications in different countries.  It probably does not require graduated response.  However, its inclusion can also be read as endorsing recently developed private-ordering graduated response in the United States: agreements between private companies to kick infringing users offline. And transplanting this language into other countries might lead them to push for similar or more draconian policies.

Things that differ from US law:

Fair Use/Exceptions and Limitations language (Article QQ.G.Y): There‘s no fair use. The broadened copyright exceptions language that the USTR bragged about earlier this year is not very broad. And it’s not fair use.  This may harm our exporting businesses.  Google just won the Google Books case, where Google books was found to be fair use; TPP shows no evidence of extending that kind of exception abroad.

International First Sale Doctrine (Article QQ.G.3,  Article QQ.G.17):  Despite the fact that the Supreme Court held in Kirtsaeng in March that first sale doctrine applies abroad—and trumps the importation right—the USTR is exporting the opposite. The USTR also opposes saying that countries are encouraged to establish international exhaustion of rights. All other countries (except Canada, which is neutral) want international first sale doctrine. It’s not clear to me why the USTR thinks it can bind the US to law contrary to Kirtsaeng—and this draft is from months after the Kirtsaeng opinion came down. I’m happy to be convinced otherwise, but I can’t see how the two are reconcilable.

Temporary reproductions (Article QQ.G.1): Despite the fact that there is a circuit split over whether temporary reproductions are considered “fixed” enough to be copyrightable, the USTR proposes exporting a requirement that temporary reproductions are covered by copyright.

Standard technical measures (Article QQ.I.1(p. 88)):  In the DMCA, there is a requirement that intermediaries accommodate “standard technical measures.”  However, those measures must be arrived at through a multi-industry process that is open and fair. In practice, this means that there are no standard technical measures in the United States. The words “multi-industry” and “fair” get left out of the TPP, which means that standard technical measures may get developed  abroad, and online intermediaries will have to accommodate them there, where they don’t have to at home.

Criminal liability ((Article QQ.H.7(2)):  U.S. criminal copyright law contains a numerical threshold for criminal copyright infringement that is done without commercial motivation- $1000 of infringement in 180 days. The TPP proposal substitutes the word “significant” for an actual number. This difference could go either way.

Notice-and-takedown misuse & attorneys’ fees (Article QQ.I.1 (p.89)): In the DMCA, people who misuse notice-and-takedown can be sued, and are subject to attorneys’ fees.  Even though the US proposal clearly asks for attorneys’ fees in other places, it does not include attorneys’ fees in the material misrepresentation provision.

Reverse engineering exemption to TPM/DRM (Article QQ.G.10): Thanks to Jonathan Band for pointing this one out to me originally. The reverse engineering exception to DRM exported by the US is not as broad as the one available domestically.

Privacy (Article QQ.I.1): TPP barely mentions privacy.  There are some discussions of a no-duty-to-monitor provision, but no broader assertion of privacy principles that I can find.  We don’t normally think of U.S. law as containing a nod to balancing copyright enforcement with privacy, but it turns out that 512(m)(2), which says providers shall not access content contrary to law, was intended to bolster the “no monitoring necessary” requirement to mean “no monitoring necessary, AND don’t violate wiretap law.” This didn’t make it in.

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Capture, sunlight, and the TPP leak

Yesterday, Wikileaks leaked the draft IP chapter of the Trans-Pacific Partnership Agreement (TPP).  This is the first of two posts I’ll make on the significance of the leak.  In this post, I discuss why the leak matters from the process perspective.  In the next, I’ll point out detailed substantive issues in the draft’s copyright provisions.  Unsurprisingly, the process and the substance are closely intertwined.

Up until this leak, only a subset of domestic IP stakeholders has had access to the TPP text.  The U.S. Trade Representative has shown the draft text to its closed advisory committees, but not to anybody else.  Content industries and pharmaceutical industries sit on the IP advisory committee.  Internet industries, smaller innovators, generics companies, and public interest groups do not.

This is no accident.  When Congress established the trade negotiating system, it exempted the Trade Representative from requirements of an open government law that was enacted to prevent agency capture, the Federal Advisory Committee Act (FACA).  FACA requires transparency, a limited term length for industry advisory committees, and balanced membership on those committees.  The trade advisory committee on IP does not have balanced membership.  It is not subject to public oversight.   And it has an extended term limit, at the discretion of the USTR.  Other open government laws also don’t apply—the USTR exempts itself from the Freedom of Information Act (FOIA) by claiming a national security exemption, and the Administrative Procedure Act (APA) doesn’t apply to international lawmaking. As a consequence, the U.S. role in international IP lawmaking is captured through one-sided industry advice.

The USTR is supposed to be exporting US IP law.  But what the USTR exports is not US law.  The USTR paraphrases US law; it doesn’t export our statutes.  This process allows information capture to have substantive consequences.

The paraphrasing USTR sends out is worse than our law. It’s less balanced, and it’s missing things. In places, the USTR misrepresents that one side of a current circuit split is the authoritative word on issues that deeply divide domestic constituents.

These skewings and omissions are not an accident. Some are directly requested by the IP advisory committee—you can see the requests in past advisory committee reports on other free trade agreements.  Others are the result of the USTR’s failing to consult public interest, academics, or opposing industries, who would point out what must be included, what’s wrong, and which omissions matter.

Balanced advice is necessary at the level of the text.  The USTR recently conducted a series of “stakeholder phone calls,” where it takes questions on broad policy issues.  These calls are transparency theater, not transparency.   They lump together stakeholders on an impossibly wide range of issues—from dairy to textiles to IP.  Discussions are high-level, where many of the problems with USTR’s policies are textual problems.  The devil, in law, is very much in the details.

The USTR is captured in other ways, too.  There is a significant revolving door problem. USTR negotiators come from and leave for employment in the same IP industries that sit on its advisory committee.  But the crux of the problem is that nobody outside of the advisory committees sees the text.

This is why the TPP leak is so important: it levels the playing field.  It lets those who aren’t on the advisory committees, like me, find and point to misrepresentations the USTR is making.  If there is one thing I’d say to our negotiating partners, it’s this: find yourself a good U.S. lawyer who can tell you what is actually in U.S. IP law.  And let them read what you’re negotiating.

Our domestic IP law is the result of democratic political process.  Even if that process has been subject to significant collective action problems, it still shows compromise.  Constituents on opposing sides of an IP issue arrive at legal meaning through statutory and regulatory compromise, and litigation.  Courts play an important role in reinserting balance into the system.  The international agreements we negotiate and sign are produced by a closed and captured process.  What little balance we achieve domestically is not what we are sending abroad.

This approach will have consequences.  As many rightfully point out, it will harm developing countries.  But it will also harm domestic constituents.  Google now makes over 50% of their profits overseas, and we export copyright law that will make it more difficult for them to operate abroad.  What’s more, the Internet is global—digital copyright law made abroad affects online content available to people here.  And the law the USTR exports affects our policymaking process at home.  It binds us to detailed IP law created by advising incumbents.  Deviations from that law may result in threats of trade sanctions.

Killing fast track is one way to change the system.  If fast track is stopped, Congress will have much more input into the trade process.  It will be able to amend trade agreements.  But this is a blunt instrument, and it might kill international trade.  A more tailored combination of changing the advisory system, giving the USTR precise and enforceable negotiating objectives, and increasing transparency could produce the changes we need.  This is why I signed the law professors’ letter calling for transparency in trade, issued today. One leak won’t fix things, but it’s certainly a start.

Sunlight is the best disinfectant. Many thanks to Wikileaks for doing what we rightfully expect our government to do.

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Neutrality or Nirvana?

Trade law should not allow countries to insist on a regulatory nirvana in cyberspace unmatched in real space.

Reading Anupam Chander’s The Electronic Silk Road has been a real treat, and thanks to the folks at Concurring Opinions for organizing this terrific online symposium and including me. The book offers a wide-ranging and insightful discussion about global electronic commerce and its regulation and management. Anupam proposes general principles—rules of the road, essentially—to guide policymakers in this process of regulating and managing global e-commerce. The very first principle introduced in the book–the quotation above captures its essence–is that of technological neutrality: To keep cybertrade free and open, the online provision of a service should not be subject to more onerous regulatory burdens than its offline counterpart.

I wish to focus on this first principle. It seems a balanced and uncontroversial prescription. Why should local regulators saddle online service providers with heavier regulatory burdens than the local bricks-and-mortar competitors? The specter of protectionism lurks!

For me, Anupam’s technological neutrality principle is insufficiently ambitious with respect to the possibilities for effective regulation of e-commerce. Anupam’s concerns are free trade concerns, with which I am sympathetic. At the same time, though, e-commerce may actually be able to do better than brick and mortar on a number of important regulatory fronts, but technological neutrality gives up on those possibilities. It relieves the pressure to pursue more efficient regulation in cyberspace.

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The Life of Pi in the Electronic Silk Road

The Life of Pi presents an epic journey that a boy survives by maximizing spiritual strength in the most adverse circumstances. Called Pi, the boy harnesses curiosity, spirituality, and love to go through his adventurous “international” journeys through religions, cultures, and most notably nature with a stormy ocean.

In his new book The Electronic Silk Road: How the Web Binds the World in Commerce, Anupam Chander also narrates an epic journey that we must embark on in the digital age. Skillfully written with elegant prose, the book explores complex challenges posed by culture, politics, and technology associated with trade in information services.

As a boundless venue hosting trade in services, cyberspace turns out to be the ocean that Pi crossed. According to Anupam, it has enormous barriers blocking the freedom of trading information services in the global context. Culture matters. While some information services are totally fine in western societies, they may be seen as hostile to Islamic beliefs. Politics matters. It has resulted in information suppression in certain authoritarian countries. Technology matters. It facilitates the growth of information services. But it has been used to block trade in information services.

The great firewalls that exist in the electronic silk road best illustrate the difficulty of promoting trade in information services. As mighty as the storm and waves that Pi suffered on the ocean, they are utilized by repressive regimes to monitor, filter, and even shut down the Internet. In 2010 Google withdrew its operations from mainland China. This incident, as I understand from reading Anupam’s book, is a shipwreck as serious as the one that Pi remembers as the darkest day of his life. But it is also a shipwreck similar to the one that Pi regards as a new journey into knowing himself, other beings with him, and the world or nature at large.

On the one hand, Google’s retreat sounded the loudest alarm to the protection of freedom of information in repressive regimes. Nearly 1.3 billion Chinese citizens as well as many other fellow human beings are subject to cyberspace information suppression by authoritarian regimes. As Anupam bluntly reminds us, “[w]hen allied with willing Internet service providers, websites, software providers, and financial intermediaries, a government can gain an omniscience heretofore unknown.” In the digital age, it is the cross-border information services that supply state-of-the-art technologies and abundant financial resources to the authoritarian regimes.

On the other hand, the Google incident calls for immediate and long-term interventions in order to reshape cyberspace as a sphere free of uncivilized surveillance. This journey to information freedom is, indeed, as arduous as the one that Pi experienced across the ocean and continents. Religion, language, imagination, dignity, and even capacity for love all play an important part contributing to Pi’s triumph. The same applies to the journey toward information freedom. After all, people subject to information suppression live with (or without) different religions and speak different languages. Therefore, the capacity for a concerted effort to empower human dignity and love to address information suppression varies significantly across the world. Toward the end of book, Anupam hints that the World Trade Organization, an international institution that governs global trade both in goods and services, might be of little help to resolve this issue. Without any competent international organizations charting the map, the journey to the heaven of information freedom is destined to be a long and tricky adventure.

Reading The Electronic Silk Road together with The Life of Pi prompted me to think about issues that go beyond information suppression existing in repressive regimes. I realized that there are two major issues looming large in the digital age. While we enjoy the unprecedented freedom, convenience, and entertainment that digital technology can bring to us, we must ponder the dark side of digital technology and how the law should tackle it.

First and foremost, we can identify and understand the ways in which the ubiquity of information services can spawn profound problems. The Life of Pi conveys problems of this kind: hostility toward another religion and culture; indifference to other human beings deemed as inferior; and unwillingness to reciprocate others’ good deeds (Richard Parker, the tiger who has a human name, runs into the nearby jungle without a glance back). All these problems remain for Pi, although he has miraculously made it to shore. Online information services have caused similar problems. For example, the websites hosting information services are rife with fraud. Shortly after I posted an advertisement on Craigslist for subleasing my apartment last fall, I received several emails through which the senders attempted to persuade me to deposit money into their bank accounts before they took over the lease. After doing a bit research about online fraud, I could not help asking myself why there are so many people who choose fraud as their jobs.

Thus, digital technology is a double-edged sword. It promotes free flow of information and provides the social glue to bind many people together to wage revolutions against repressive regimes (e.g., the Jasmine Revolution). However, it also wields the power to alienate many people from the social network of direct interactions, leaving them increasingly alone in their spaces of egoism. Today, the majority of people on the subway spend much of their time using their smartphones or tablets. They appear in the tangible public spaces, but they confine themselves to those machines connected with the Internet, enjoying the private fun of checking Facebook or Twitter, playing electronic games, reading news, shopping online, or watching YouTube videos. Digital technology has facilitated widespread use of emails and text messages, further reducing the occasions for face-to-face conversations, greetings, or smiles. Thus, these trends raise the question whether digital technology promotes engagement with others or reinforces the individual quest for solitude. A new book by Sherry Turkle, Alone Together: Why We Expect More from Technology and Less from Each Other, has a comprehensive and nuanced discussion about this tangled issue.

How should the law tackle the double-edged nature of digital technology? Law is critically important in this regard, because it informs people of what they can and cannot do. Anupam teaches us that core to the law regulating trade mediated via cyberspace is the protection of “the right of individuals to share and receive information.” This core right prioritizes the “delivery and consumption” of information “regardless of frontiers” (p.202). His novel proposal that combines globalization together with harmonization of laws serves the full realization of this right.

But can celebration of the individual right to share and receive information offer means by which we can deal with the alienating effect of digital technology? In other words, does the language of rights really increase the consciousness of sharing information as it purports to? To some extent, it does. Anupam proves this with many vivid examples, particularly the Jasmine Revolution in which sharing information about freedom and democracy was the focal point. But as I discussed earlier and others’ works have proven, digital technology has also driven an increasing number of people to withdraw from traditional means of communication and confine themselves to an egoistic world of isolation.

I believe the language of responsibility can play a big part in dealing with this problem. In my recent article entitled Copyright and Responsibility, I point out that law “regulates human affairs through rules that require people to enjoy their freedoms and exercise their rights in responsible ways.” Responsibilities always come together with rights. Without the infusion with responsibilities, rights are meaningless. Persons are not only individuals but also social members of communities, countries, and the whole world. As social members, persons must not single-mindedly pursue only the realization of their individual rights. Rather, they should also constantly ask what responsibilities they should take on and how they can fulfill them in their social membership.

Anupam does mention the importance of responsibility. For example, he urges that Internet service providers follow the “Do No Evil” responsibility, which requires them not to collaborate with repressive regimes that suppress the free flow of information. Indeed, this responsibility is crucial. But should we also ask Internet service providers to take on more responsibilities to encourage people to spend slightly less time using computers, smartphones, or tablets and slightly more time interacting with others in various ways? In this sense, Internet service providers may have a responsibility to cultivate a healthy environment and culture for human interactions. A follow-up question is whether individuals should have the responsibility to spend slightly more time paying attention to others and their communities via computers, smartphones, or tablets.

Both The Life of Pi and The Electronic Silk Road prompt me to think more about the problems in the human world. The Life of Pi teaches me how a person can grow and mature through overcoming tough challenges and even evils. Anupam’s The Electronic Silk Road teaches me how globalized human societies can continue to flourish through overcoming the obstacles caused by national boundaries and the self-centered energy embedded in each human being. Both The Life of Pi and The Electronic Silk Road celebrate the beauty of human spirituality and its power to deter selfishness and even evil.

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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. 

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