International Data Flows and Privacy: The Conflict and Its Resolution by Aaditya Mattoo and Joshua P. Meltzer

The European Union’s General Data Protection Regulation (GDPR) widens the scope and strengthens the enforcement of privacy standards. To protect privacy abroad, personal data is allowed out of the EU under strict conditions: if a non-EU country enacts privacy legislation equivalent to the GDPR, or if firms accept Binding Corporate Rules (BCR) or use Standard Contractual Clauses (SCC) for specific business deals. These conditions pose a challenge, particularly for developing countries. A GDPR-based national privacy law would impose the same high standard on all firms, even when they sell at home, leading to higher economy-wide costs of doing business. BCRs and SCCs have proved to be costly and time-consuming. While the GDPR may raise WTO issues, litigation cannot address the central challenge: preserving opportunities for digital trade while respecting countries’ chosen levels of privacy protection. An alternative approach would involve negotiating agreements under which data destination countries protect the privacy of foreign citizens in return for source countries committing not to restrict data flows, as in the EU–US Privacy Shield and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). In parallel, and as a step toward multilateralizing these agreements, countries would develop common privacy principles, building upon the work in the OECD and APEC.

https://doi.org/10.1093/jiel/jgy044

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Evolutive Interpretation by the WTO Adjudicator by Gabrielle Marceau.

Several types of changes can take place between the conclusion of a treaty and when its provisions call for interpretation, e.g. changes in the political, social, historical or legal context; technological changes; linguistic changes; or changes in the law. Traditionally, interpreters refused to consider changes that may have occurred since the treaty’s conclusion. Today, many argue that it is more legitimate for a treaty interpreter to take account of these changes and use an ‘evolutionary’ or ‘dynamic’ interpretation. The issue of changes is particularly relevant in the context of the World Trade Organization (WTO) Treaty, because it combines long-standing provisions with more recent ones, and because international trade has evolved greatly, notably with electronic trade (e-commerce) and new means of distribution that did not exist when the WTO was concluded. The different types of changes discussed in this article may be grouped into four non-mutually exclusive types of situations, which will be examined through the prism of the interpretation process set out in Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT). While different types of evolutionary interpretations can be considered under standard rules of interpretation in public international law, the use of the term ‘evolutionary interpretation’ allows for a more global understanding of the phenomenon, and might have, at the very least, a symbolic value.

https://doi.org/10.1093/jiel/jgy042

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Trade agreements, regulatory institutions and services liberalization

Many agreements to liberalize trade in services tend to be limited in scope. This is a puzzle considering the high share of services in total employment and value added and relatively high barriers to trade in services in many countries. In this paper we argue that neglected complementarities between services trade policies and domestic regulation may help to understand the limited ambition on services observed in many trade agreements. We show that the productivity effects of services trade liberalization are conditional on regulatory quality. Our findings suggest that greater effort to design trade agreements with a view to improving regulatory quality may be a necessary condition for deepening the services coverage of trade agreements and will enhance the welfare gains from services trade liberalization.

Full text: http://librarydocs/_earticles/Trade agreements, regulatory institutions and services liberalization by Matteo Fiorini.pdf

Global Policy Volume 9 . Issue 4 . November 2018 https://doi.org/10.1111/1758-5899.12583

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Brexit : trade governance and legal implications for third countries by Martin Molinuevo.

The impact of Brexit on the trade relations of EU/UK with third countries is likely to entail an extensive process of amendment to the disciplines and sectoral obligations featured in their current multilateral and bilateral trade and investment agreements. At the WTO, the UK stance will require amending the current EU lists of concessions in a way that may lead to a broad renegotiation process. At the bilateral level, the status of current EU agreements regarding the UK and third countries is uncertain, as these agreements may no longer apply to the UK. Further, agreements on goods, such the customs union with Turkey, will no longer be valid for the UK. Least developed countries (LDCs) and developing countries who benefit from the EU Generalized System of Preferences (GSP) will continue under this regime, but that framework will no longer be applicable to the UK. In all cases, third countries who consider that Brexit has diminished the value of their commitments may request compensation or changes in the text of the agreements, or ultimately terminate the agreement. The process of amending the trade and investment agreements requires comprehensive knowledge of their trade and investment flows with the EU and the UK.

http://www.kluwerlawonline.com/document.php?id=TRAD2018026

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Brexit from a WTO/GATS perspective : towards an easy divorce? by Rudolf Adlung.

Virtually all studies dealing with the WTO-related aspects of Brexit, the United Kingdom’s (UK’s) envisaged separation from the European Union, tend to focus on the ramifications for merchandise trade. Services trade rarely enters the picture, reflecting an apparently prevailing view that the reallocation of the existing pre-Brexit obligations requires little more than some drafting changes. This article begs to disagree, arguing that there are a variety of complex legal issues involved. These are related, inter alia, to the conceptual broadening of the General Agreement on Trade in Services (GATS) beyond conventional cross-border trade to three more types of transaction and its extension, in addition to the treatment of products (services), to that of producers (service suppliers). The competitive conditions of foreign producers that are established within a Member’s territory are thus covered by the Agreement. With this in view, the article points out scenarios under which these producers are adversely affected by the termination of the UK’s single-market status and the ensuing (re-)introduction of restrictions on market access and national treatment under GATS Articles XVI and XVII and/or the (re-)appearance of regulatory impediments in bilateral trade. In turn, this might provide a basis for the home countries to seek compensation. The article also identifies GATS-scheduled limitations that, because of the Most-favoured-Nation principle, cannot be maintained in trade among independent WTO Members. Depending on their nature, the resulting adjustments might lead to compensation claims as well.

http://www.kluwerlawonline.com/document.php?id=TRAD2018031

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A Closer Look At WTO’s Third Pillar: How WTO Committees Influence Regional Trade Agreements by Devin McDaniels , Ana Cristina Molina & Erik N. Wijkström.

This paper illustrates how the work of World Trade Organization’s (WTO) standing bodies—its ‘Third Pillar’, as we will call it—is inspiring parties in regional trade agreements (RTA) negotiations and contributing to deeper integration. We focus on the work of the WTO technical barriers to trade (TBT) Committee and explore, as a case study, the extent to which the Committee’s decision on principles for development of international standards (the Six Principles) has shaped provisions in RTAs. This Decision, arguably the most important decision taken by the TBT Committee, is meant to clarify which international standards may be a relevant basis for TBT measures; an issue that has been left undefined under the WTO TBT Agreement. Our analysis covers 260 RTAs, and shows that one quarter of RTAs has sharpened and hardened the Committee’s decision by making it directly applicable to Parties (in RTAs) whereas under the WTO they are ‘merely’ recommendations. A small number of RTAs follow a different approach and explicitly name the sources of relevant international standards.

https://doi.org/10.1093/jiel/jgy038

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Trade governance and legal implications for third countries by Martin Molinuevo.

The impact of Brexit on the trade relations of EU/UK with third countries is likely to entail an extensive process of amendment to the disciplines and sectoral obligations featured in their current multilateral and bilateral trade and investment agreements. At the WTO, the UK stance will require amending the current EU lists of concessions in a way that may lead to a broad renegotiation process. At the bilateral level, the status of current EU agreements regarding the UK and third countries is uncertain, as these agreements may no longer apply to the UK. Further, agreements on goods, such the customs union with Turkey, will no longer be valid for the UK. Least developed countries (LDCs) and developing countries who benefit from the EU Generalized System of Preferences (GSP) will continue under this regime, but that framework will no longer be applicable to the UK. In all cases, third countries who consider that Brexit has diminished the value of their commitments may request compensation or changes in the text of the agreements, or ultimately terminate the agreement. The process of amending the trade and investment agreements requires comprehensive knowledge of their trade and investment flows with the EU and the UK.

http://www.kluwerlawonline.com/document.php?id=TRAD2018026

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Using Trade Facilitation to Assist MSMEs in E-Commerce in Developing Countries by Rutendo Tavengerwei.

In anticipation of the 11th WTO Ministerial Conference (MC11), several developing country Members submitted proposals reflecting concerns related with e-commerce and the continued involvement of micro, small and medium enterprises (MSMEs) in cross-border e-commerce. Some developing countries perceive the booming significance of MSMEs as an opportunity to further enhance their economic relevance by incorporating them into e-commerce. The increase of MSMEs in e-commerce has also been reflected by the International Trade Centre (ITC). In one of the ITC’s most recent surveys conducted on 2262 firms, the statistics indicated that of the firms that engage solely in cross-border e-commerce, 82% are MSMEs. Notwithstanding these significant changes on the ground, Members have differed significantly in their views since 1998 concerning the e-commerce agenda. This has created considerable inroads in defining what e-commerce is as well as the rules that should regulate e-commerce. More recently, the e-commerce dialogue has reflected concerns on how the WTO could potentially deal with the rapid inclusion of MSMEs in the market through e-commerce. Although all companies face red tape in cross-border trade, due to size and financial constraints, MSMEs in developing countries face the most challenges in cross-border e-commerce. Many of these problems are related to the cross-border delivery of goods, the after-sales services as well as limited cross-border de minimis exemptions that discourages MSMEs from e-trading. Therefore, several Members consider that it is vital to continue to work on trade facilitation matters, especially those that are forward looking and can better assist MSMEs to better integrate into the e-commerce world. This article adopts two specific discussion points based on the proposals submitted by different Members for the WTO MC11 suggesting ways to move forward. First, using case studies from different countries, the article will focus on some of the challenges faced by MSMEs in developing countries, such as inefficient customs administration which is a result of issues related to cross-border trade. Part of this discussion will also assess how developing countries can use the recently agreed TFA to address these issues. The second part of the article will focus on how current provisions in the TFA as well as other forward looking trade facilitation efforts that are not reflected in the agreement, can help MSMEs to benefit from cross-border e-commerce. In relation to this part of the discussion, an exploration of the possibilities of technical assistance and capacity building that is e-commerce relevant would thus be necessary. Finally the article will conclude, highlighting limitations associated with the recommendations given.

https://doi.org/10.1093/jiel/jgy022

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The driving forces of the convergence of WTO dispute settlement mechanism and international investment arbitration by Fenghua Li.

Contemporary jurisprudence of international adjudication has seen an emerging trend of the convergence of WTO dispute settlement mechanism (DSM) and international investment arbitration (IIA). Although there is currently a scarcity of a general conceptual framework for the convergence, which leads to an ambiguous threshold of resemblance, interaction or integration that can be considered to form or indicate the convergence, it has become evident by now that the convergence, both extant and emerging, has been and is being promoted directly or indirectly by a number of driving forces. Economic reality that increases the inter-linkage between trade and investment, the confluence of public and private international law, the homogeneity of trade and investment dispute resolution and the utilization of WTO DSM and IIA as complementary tools to enforce trade and investment commitments are arguably four primary driving forces that are able to converge WTO DSM and IIA.

http://www.kluwerlawonline.com/document.php?id=TRAD2018021

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How a TPP-Style E-commerce Outcome in the WTO would Endanger the Development Dimension of the GATS Acquis (and Potentially the WTO) by Jane Kelsey.

The World Trade Organization (WTO) faces a watershed. Developed country Members want to abandon the Doha round and negotiate ‘new issues’, notably electronic commerce, as part of a broader US-led strategy to rewrite the global trade rules for the 21st century. Developing countries insist the Doha round be concluded before considering new issues and most reject the e-commerce agenda as foreclosing their options for digital development. This standoff dominated the MC11. The new e-commerce agenda has its genesis in the Trans-Pacific Partnership. Three factors complicate moves to export it to the WTO. First, those rules are blunt instruments designed to protect the first mover status and oligopolistic power of Big Tech. Second, they lack any development flexibilities or obligations. Third, their application to major developing country competitors and the potentially lucrative markets of larger developing countries requires multilateralization through the WTO, but that will be a highly contested process. That contest is now playing out through the plurilateral process announced by the e-commerce proponents during the MC11. The proposals assume a major expansion of Members’ commitments under the General Agreement on Trade in Services (GATS). Favourable interpretations of sectoral classifications, modes of trading services, and the application of technological neutrality to historical commitments would override the original GATS acquis that ensures developing countries can control their exposure, and seriously diminish their regulatory autonomy to maximize the opportunities of the digital economy and minimize the risks. Such an agenda could deepen the crisis at the WTO.

https://doi.org/10.1093/jiel/jgy024

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Understanding the Role of the WTO in International Data Flows: Taking the Liberalization or the Regulatory Autonomy Path? By Nivedita Sen

Recent years have witnessed a surge in discussions relating to data and data flow in trade fora. This was predictable given the importance of data for trade in the digital economy, especially e-commerce. However, there is a major discord between WTO members on issues relating to data flows and data localization. This article sets out to understand how data flows across borders and the types of trade restrictive data localization measures members use. The analysis of various restrictions on data flows imposed by states reflects the different objectives behind them, targeting all or specific types of data. Such regulations potentially violate existing WTO commitments. The article concludes with a call for issuing a multilateral amendment of existing norms, and undertaking a data differentiated approach to resolve the deadlock at the WTO.

https://doi.org/10.1093/jiel/jgy021

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AI and Negotiation

Find the latest research via Google Scholar

2018-02-20 Negotiating bots : the Art of the deal (ambitai.com)

2018-02-01 How AI is changing Contracts (hbr.org)

2017-09-11 How AI could negotiate better deals for humans (sciencemag.org)

2017-07-10 Can Robots Write Treaties? Yes, They Can! (Wolfgang Alschner)

2017-06-14 Deal or no deal? Training AI bots to negotiate (code.facebook.com)

2017-06-15 Facebook tried teaching bots art of negotiation – so the AI learned to lie (theregister.co.uk)

2017-08-05 How Facebook’s AI bots learned their own language and how to lie (newsweek.com)

2017-06-15 Facebook training AI bots to negotiate with humans (nvidia.com)

2011-07-27 Artificial Intelligence and Negotiation (www.uv.es)

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AI and the Legal Industry

Find the latest research via Google Scholar

2018-04-30 Busier Than Ever? A Data-Driven Assessment and Forecast Of WTO Caseload (Pauwelyn & Zhangb CTEI working paper)

2018-03-30 Making Sense of Legal AI: What It Means for Your Practice and What’s Ahead (law.com)

2018-03-28 AI Trends Driving the Legal Industry (lawtechnologytoday.org)

2018-03-18 Justice by Algorithm: Do Machines Help Humans Make Better Decisions? (legalexecutiveinstitute.com)

2018-03-08 Practicing artificial intelligence in legal (thomsonreuters.com)

2018-02-20 AI: How Will It Change The Business Of Law In 2018? (lawyer-monthly.com)

2018 AI predictions 8 insights to shape business strategy (pwc.es)

2017-11- 29 AI in Law and Legal Practice – A Comprehensive View of 35 Current Applications (techemergence.com)

2017-11-15 AI Can Be Made Legally Accountable for Its Decisions (technologyreview.com)

2017-11-08 Law, Technology and Access to Justice (law-tech-a2j.org)

2017-05-25 The Data-Driven Future of International Economic Law (Alschner, Pauwelyn & Puig in Journal of International Economic Law)

2017 Artificial Intelligence: The ethical and legal implications (aitech.law)

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Digital or Trade? The Contrasting Approaches of China and US to Digital Trade by Henry Gao.

With the growing importance of the internet, digital trade, or electronic commerce, has become a key issue in international trade regulation. As the home to some of the largest internet companies in the world, the USA took the lead in bringing the issue into the WTO and has been the leading proponent on the issue. In contrast, the developing countries were quite sceptical and reluctant to engage on discussions on the issue. Recently, however, several developing countries have changed their positions and become more active participants. Chief among them is China, which has raised some interesting proposals both within and beyond the WTO. The issue also emerged as one of the main issues discussed at the 11th Ministerial Conference of the WTO. This article provides a critical examination of the contrasting approaches of the US and China on the issue. It argues that, the US approach tends to focus more on the ‘digital’ nature of digital trade, while the Chinese approach prefers to address the issue from the traditional ‘trade’ perspective. The article analyses the reasons for the different approaches, and provides some suggestions on how to move forward on the issue at MC11 and beyond given the differences between the two approaches.

https://doi.org/10.1093/jiel/jgy015

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Another Digital Divide: The Rise of Data Realms and its Implications for the WTO by Susan Ariel Aaronson and Patrick Leblond

Individuals, businesses, and governments increasingly use data to create new services delivered via the internet. In so doing, they are creating a new economy built on cross-border data flows. The USA, the European Union, and China are using domestic and foreign policies to reap data-based economies of scale and scope. Essentially, they have created three distinct data realms with different approaches to data governance. As a result, they have fostered a new digital divide: between the three data behemoths and other countries that are rule takers. This situation presents the WTO with a challenge and an opportunity. These three data realms could undermine the ability of the WTO to govern trade in data flows, but it also creates pressures for the three data realms to use WTO mechanisms to find common ground among their approaches. Moreover, it could provide an incentive to WTO members to create new rules governing trade in data.

https://doi.org/10.1093/jiel/jgy019

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Is International Law International?

In preparation for the LAD Speakers Series presentation on the 9^th of May by author Anthea Roberts the Library would like to offer the following short bibliography of related reading material:

Google Books preview

2018-02-21 Book Review: Is International Law International? by Beatrice Walton

2018-02-09 Is International Law International? Continuing the Conversation by Anthea Roberts

2018-02-08 Mobility and Freedom in the International Legal Academia: A Comment on Anthea Roberts’ Is International Law International? byMarko Milanovic

2017-09-28 Is International Law International? Preface and Chapter 1: The Divisible College of International Lawyers

You can check the status of our copy of this book and, if necessary, request a hold here.

 

Between ‘Member-Driven’ WTO Governance and ‘Constitutional Justice’: Judicial Dilemmas in GATT/WTO Dispu te Settlement by Ernst-Ulrich Petersmann

The power-oriented General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) traditions of ‘member-driven governance’ risk undermining the dispute settlement system of the WTO and its judicial administration of justice. US President Trump, the ‘Brexit’, and non-democratic rulers challenge multilateral treaties and judicial systems by ‘populist protectionism’ prioritizing ‘bilateral deals’. This contribution uses the example of the US blockage of the WTO Appellate Body system for illustrating the ‘republican argument’ why public goods (PGs, res publica) cannot be legitimately protected without judicial remedies, rule of law and democratic governance. Adversely affected governments, citizens, and courts of justice must hold power politics more accountable and publicly challenge illegal WTO practices so as to protect transnational ‘aggregate PGs’ (like the WTO trading and legal system) for the benefit of citizens. WTO members should use their power of majority voting for authoritative interpretations of WTO law supporting ‘judicial administration of justice’ in multilevel governance of the world trading system. Multilevel judicial control of trade regulation legitimizes ‘member-driven governance’ by protecting rule of law as approved by parliaments when they authorized ratification of the WTO Agreement and its legal implementation for the benefit of citizens, their equal rights and social welfare.

https://doi.org/10.1093/jiel/jgy004

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The Potency of the SPS Agreement’s Excessivity Test: The Impact of Article 5.6 on Trade Liberalization and the Regulatory Power of WTO Members to take Sanitary and Phytosanitary Measures by Hanna Schebesta & Dominique Sino poli

The article investigates the current and potential relevance of Article 5.6 SPS in deciding SPS disputes, and its impact on trade liberalization and WTO Members’ power to take sanitary and phytosanitary measures.

Article 5.6 of the SPS Agreement states that SPS measures may not be more trade restrictive than required to achieve a Member’s appropriate level of protection. This obligation is self-standing and separate (in Article 5.6) from the necessity test (Article 2.2). We argue that its autonomous nature makes Article 5.6 SPS a distinct type of trade-off instrument (‘excessivity test’).

Using the software ATLAS.ti, we conducted a systematic content analysis of all SPS disputes invoking Article 5.6. In particular, we surveyed the jurisprudential development of the provision (outcomes of 5.6 SPS cases over time, DSB application of the three cumulative conditions and their respective outcome determinacy).

Our findings show that the importance of Article 5.6 has significantly increased over time, and holds immense potential for challenges to WTO Members domestic SPS measures for being excessively trade restrictive.

https://doi.org/10.1093/jiel/jgy003

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The Rise of Populist Nationalism and the Renegotiation of NAFTA by Simon Lester and Inu Manak

Countries that have traditionally led the way in promoting economic globalization and its institutions have seen a recent surge of populism and nationalism, calling into question the liberal international economic order. The rhetoric of these critics is often vague, however, and it is unclear what a populist or nationalist approach to international economic policy would look like. The North American Free Trade Agreement (NAFTA) renegotiation initiated by the Trump administration could give us the first clues. Will their proposals destroy the trading system as we know it, or merely tweak it? This article examines these issues by discussing the concepts of nationalism and sovereignty, and then viewing the Trump administration’s specific NAFTA proposals through those lenses.

https://doi.org/10.1093/jiel/jgy005

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Plurilateral trade agreements: an escape route to the WTO? By Rudolf Adlung and Hamid Mamdouh.

Due to the persistent stalemate in the WTO ’ s Doha Round negotiations, various smaller-scale options have drawn attention in recent years, including the negotiation of plurilateral agreements (PAs) among interested governments. There are essentially two types of such agreements, an exclusive and an open variant. While the former apply among the signatories only, the latter are implemented on a Most-favoured-Nation (MFN) basis. To preclude ‘ free riding ’ , the entry into force of such open PAs is usually conditioned on the participation of a ‘ critical mass ’ of countries, representing market shares of some 80% or more – quite a challenging benchmark. To promote more frequent use of PAs, given the plethora of pressing policy concerns, whether investment-, competition- or labour-related, the negotiation of exclusive agreements is being (re-)considered in current discussions. However, the entry into force of any non-MFN-based agreement would need to be accepted by consensus among all 160-odd WTO Members, and this may prove virtually impossible to achieve. This article thus proposes, based on past experience, to further explore the potential for open PAs among interested Members in the form of co-ordinated improvements of current commitments or, if not covered by the existing WTO framework, by way of ‘WTOextra ’ understandings.

http://www.kluwerlawonline.com/document.php?id=TRAD2018005

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