Big Data And Global Trade Law

Cover
Half-title
Title page
Copyright information
Contents
List of Figures
List of Tables
List of Contributors
List of Abbreviations
Introduction
Part I Global Trade Law and Policy in the Age of Big Data
1 Data Flows and Global Trade Law
A Introduction
B WTO Law as Pre-Internet Law
C Evolution of Digital Trade Provisions in PTAs
I Overview and Some Emerging Trends
II Overview of Data-Related Rules in PTAs
1 Rules on Data Flows
2 Data Localization
3 Privacy and Data Protection
D Substantive Developments in Digital Trade Governance
I The CPTPP
II The USMCA
E Conclusion
2 Data Flow-Related Provisions in Preferential Trade Agreements: Trends and Patterns of Diffusion
A Introduction
B A Look at State of the Art
C Design Dimensions and Related Concepts
I Scope
II Depth of Data Flow Facilitation
III Flexibility
IV Consumer Protection
V Non-discrimination
VI Regulatory Cooperation
D Describing Trends and Patterns in Digital Trade Governance
E Of Rule-Makers and Central Actors
F Zooming in on the Rule-Makers
G Exploring Explanations for Treaty Design
H Conclusion
3 The Costs of Data Protectionism
A Introduction
B Countries That Impose Stricter Data Policies
C Empirical Evidence on the Cost of Data Protectionism
I Foregone Gains for Local Companies
II The Foregone Gains for Foreign Companies
D Data Protectionism and the World Trade Organization
E Annex
I Sub-index on Cross-Border Data Flows
II Sub-index on Domestic Use of Data
1 Data Retention
2 Subject Rights on Data Privacy
3 Administrative Requirements on Data Privacy
4 Sanctions for Non-compliance
5 Other Measures
4 WTO Law and Cross-Border Data Flows: An Unfinished Agenda
A Introduction
B Regulating Data Flows: A Multilayered Policy Framework
I Privacy and Cross-Border Data Flows
II Cybersecurity and Cross-Border Data Flows
III Protecting Consumer Rights through Data Restrictions
IV Access to Data for Law Enforcement
V Digital Industrial Policy in Developing Countries
C Trade-Related Aspects of Data Governance
I Applying WTO Disciplines to Data Restrictive Measures
II Trade-Related Aspects of Data Flows
1 Privacy Protection and GATS
2 Cybersecurity and GATS
3 Online Consumer Protection and Digital Trade
4 GATS Compatibility of Digital Industrial Policy
5 Data-Related Issues Outside the Scope of WTO Law
D Devising a WTO Framework on Data Flows
I Foundational Principles of Data Regulation in International Trade Law
1 Fostering Digital Trust at a Domestic and Transnational Level
2 Ensuring Interoperability and Transparency to Facilitate Free Flow of Data
3 Exploring New Regulatory Approaches in WTO Law
II Reforms in the WTO Framework for Data Regulation
1 Horizontal Obligation on Cross-Border Data Flows and Data Localisation
2 Enabling International Cooperation on Cybersecurity Issues
3 Requiring Privacy Frameworks and Promoting Mutual Recognition Mechanisms
4 Incorporating Consumer Trust Enhancing Measures
5 Enabling Digital Innovation and Promoting Business Trust
6 Relevance of Special and Differential Treatment for Developing Countries and LDCs
III The Path Ahead for Rules on Data Flows at the WTO
E Conclusion
Part II From E-Commerce to Big Data and AI: Emerging Issues in Global Trade Law
5 Artificial Intelligence and Trade
A. Introduction
B AI's Kangaroo Problem, or Why Regulate AI?
C AI and Trade Law
I Scenario One: Dr. AI
II Scenario Two: Claims Adjuster AI
D Conclusion
6 Blockchain's Practical and Legal Implications for Global Trade and Global Trade Law
A Introduction
B Understanding Blockchain's Practical Implications for International Trade
I Blockchain: A Complex World
1 A Multitude of Distributed Ledger Technologies
2 Various Types of Blockchain Platforms
3 Automation via Smart Contracts
II Blockchain: A Potentially Transformative Impact on International Trade
1 Blockchain's Potential Impact on International Trade Transactions
a Blockchain Can Make Trade Processes More Efficient and Less Costly
b Towards Paperless Trade?
2 Blockchain Can Help Implement WTO Agreements
C Regulatory Considerations around Blockchain
I Legal Recognition of E-Signatures, E-Documents and Blockchain Transactions
II Applicable Law, Liability and Enforcement Issues
III Cross-Border Data Flows, Data Localization and Data Privacy Issues
1 Data Localization Restrictions Can Impact Blockchain, Although to a Limited Extent
2 Data Privacy
a Blockchain as a New Tool for Data Sovereignty and Protection
b Could Data Protection Regulations Block Blockchain?
D Devising a Way Forward
I The Need for a Conducive Regulatory Environment
1 Regulation as an Enabler
2 The Challenge of Blockchain Regulation
II The Need for Blockchain Polycentric Governance
III What Role for the WTO?
1 Monitoring Blockchain Developments Related to International Trade
2 Fostering Multi-stakeholder Cooperation and Governance
3 Promoting a Conducive Regulatory Environment
E Conclusion
7 TRIPS Meets Big Data
A Defining Big Data and AI
B Big Data in the WTO's Work
C Adapting Intellectual Property to Big Data and AI
I Intellectual Property Rights Protection of Big Data Software and Corpora
II Text and Data Mining
III The Three-Step Test
D Conclusion
8 Big Data, AI and Border Enforcement of Intellectual Property Rights: Impact on Trade Flows
A Digitalization of Intellectual Property Enforcement
B How Artificial Intelligence Transforms Intellectual Property Enforcement
C Digitalization and Use of Big Data in Customs Control
I Digitalization and Customs Control
II Big Data, Customs Control and Risk Analysis
III Distributed Ledger Technologies and Localization of Traded Goods
D Legal Challenges and Opportunities
I Opportunities
II Challenges
E Conclusions
Part III Safeguarding Privacy and Other Users' Rights in the Age of Big Data
9 Futuring Digital Privacy: Reimaging the Law/Tech Interplay
A Introduction
B The Modern Moment in Technology
C Historical Patterns of Interaction between Law and Technology
D Reimagining the Relationship of Law and Technology
E Towards Recording Privacy Law
10 The Algorithmic Learning Deficit: Artificial Intelligence, Data Protection and Trade
A Introduction
B Cross-Border Digital Trade and Artificial Intelligence
C The Limits of Personal Data Protection in the Context of Trade Law Policy on Cross-Border Data Flows in AI Context
I Thin Borderline between Personal and Non-personal Data in AI Context
II Individual Rights Framework Does Not Factor in the Value of Knowledge Derived from Data
D Conclusion
11 Panta Rhei: A European Perspective on Ensuring a High Level of Protection of Human Rights in a World in Which Everything Flows
A Introduction
B Data Flow as a Policy Metaphor
C Human Rights Do Not Flow Easily across Borders
I Who Should Be in Charge of the Internet?
II Reactive Jurisdictional Claims
D International Trade Law Laying Claim to Free Data Flows
E Conclusion
Part IV Global Perspectives on Digital Trade Governance
12 Data Regulation with Chinese Characteristics
A Introduction
B Internet Regulation in China
I Overview of the Regulatory Landscape
II China's Main Internet Regulations
1 Hardware Regulation
2 Software Regulation
3 Content/Data Regulation
4 Summary
C Trade Agreements
D Conclusion
13 Regulatory Convergence of Data Rules in Latin America
A Introduction
B Regulatory Convergence in E-Commerce and Data Flow Provisions in Latin American PTAs
C E-Commerce and Data Provisions in Latin American PTAs
I Electronic Commerce
1 Objectives and Principles
2 Applicability of WTO Rules
3 National Treatment (NT) and Most-Favoured Nation (MFN) Obligations
4 Customs Duties
5 Electronic Authentication
6 Source Code
7 Personal Data
a Privacy Issues
b Consumer Protection
II Rules on Data
1 Data Flows
2 Data Localisation
D Legal Framework of E-Commerce and Personal Data Protection in Latin American Countries
I Chile
II Peru
III Panama
IV Colombia
V Costa Rica
E Conclusion
14 Uploading CPTPP and USMCA Provisions to the WTO's Digital Trade Negotiations Poses Challenges for National Data Regulation: Example from Canada
A Introduction
B Cross-Border Data Flow and National Data Regulation
C The CPTPP, the USMCA and National Data Regulation: Example from Canada
I The CPTPP
II The USMCA
III Interim Conclusion
D Key Proposals at the WTO's Plurilateral Negotiations on Trade-Related Aspects of Electronic Commerce
E Conclusion and Outlook
15 Data Ownership and Data Access Rights: Meaningful Tools for Promoting the European Digital Single Market?
A Introduction
B The Digital Single Market Strategy: Basic Features and Objectives
C Data Ownership
I Ownership as a Property Right
1 State of Research
2 Analysis
a Transaction Costs
b Consequences for Data Subjects
3 Interim Conclusion
II Ownership as Control
1 Preliminary Remarks
2 Implementation
a Consent
b Data Subjects' Rights
3 Analysis
D Data Access Rights
I Access by Individuals
1 Access to Personal Data
2 Access to Non-personal Data
3 Analysis
II Access by Businesses
1 Preliminary Remarks
2 Implementation
a Sector-Specific Regulations
b Competition Law
c Compulsory Licences
3 Analysis
E Conclusion
16 Data Is Different, So Policymakers Should Pay Close Attention to Its Governance
A Introduction
B The Peculiarities of Data and the Role of Data in Trade
C New Uses for Data Require New Ways of Thinking about Data
D The Current State of Rules Governing Cross-Border Data and the Rise of Data Realms
E A Path Forward
Step 1: Encourage States to Develop Plans for the Regulation and Exchange of Different Types of Data
Step 2: Give People Greater Voice and Greater Control over Their Data
Step 3: Clarify the Rules and Exceptions to the Rules, So Nations Do Not Restrict Cross-Border Data Flows More Frequently or Broadly than Necessary
Step 4: Provide Clarity on What Types of Practices Should Be Banned Because They Are Trade Distorting
Step 5: Delineate How Nations Should or Should Not Respond to State Actions That Distort Cross-Border Data Flows
F Conclusion
Index