Trade Law in a Data-Driven Economy [chapter]

Gregory Shaffer
2021 Artificial Intelligence and International Economic Law  
Data, it is said, is the new oil. Treated as a raw material, once processed, once refined, it fuels the new economy. But unlike oil, data is not only nondepletable, it is also constantly generated and exponentially growing. Unlike oil, data exhaust from transactions is not waste but recycled for further use. And unlike oil, data is nonrivalrous as it can be exploited by multiple users. Despite the differences, the metaphor is powerful not only because data fuels the new economy, but also
more » ... data is extracted (in this case not only from land but from humans), and because data is protected and traded through law as a new form of property. The value of data vastly surpasses that of oil as measured by the capitalization of the world's largest firms. 1 The only question for companies is how to gather, store, analyze, and deploy data ever more efficiently since data can significantly reduce transaction and production costs. This chapter examines the social challenges posed by such an economy, their implications for trade law, the current trade negotiating context, and a way forward that can both enhance trade and regulatory efficacy. Section I sets the stage regarding law as a "channeling" tool in the digital economy. Section II examines eight critical challenges. Section III presents the negotiating context in which major powers advance different governance models. Section IV provides a governance framework for moving forward in light of the challenges, a framework that is modest and that foregrounds the importance of building * This chapter is adapted from a keynote presentation at a conference organized by the Asian International Economic Law Network (AIELN) in Taipei, titled "International Trade Regime for
doi:10.1017/9781108954006.003 fatcat:44zhzehcpjh5ddwh3swz66pnwu