Big Data and Global Trade Law

Length: 350 pages
Edition: 1
Language: English
Publisher: Cambridge University Press
Publication Date: 2021-07-29
ISBN-10: 110884359X
ISBN-13: 9781108843591
Sales Rank: #642796 (See Top 100 Books)

This collection explores the relevance of global trade law for data, big data and cross-border data flows. Contributing authors from different disciplines including law, economics and political science analyze developments at the World Trade Organization and in preferential trade venues by asking what future-oriented models for data governance are available and viable in the area of trade law and policy. The collection paints the broad picture of the interaction between digital technologies and trade regulation as well as provides in-depth analyses of critical to the data-driven economy issues, such as privacy and AI, and different countries’ perspectives. This title is also available as Open Access on Cambridge Core.

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