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Moreover, as seen above, sub-national actors such as US states are not able to ratify international environmental treaties. Multi-actor, multi-level governance for the transatlantic climate and energy dialogue international law, and while it is still possible in theory to link the ETS with its subnational counterparts in the US, the legal implications will need to be carefully considered. Civil society actors and organizations such as NGOs, universities, think tanks, foundations and various types of citizens groups, also have an increasingly important role in addressing climate change.
The United States has a vibrant NGO community working on environmental issues that has played a key role in advancing grassroots efforts to tackle climate change. Such organizations work to bring environmental concerns to public officials, advocate and monitor climate policies at the local, national and international levels, contribute to information sharing and provide expertise and analyses that can help advance climate objectives. Following the Rio Earth Summit, the UN provided greater recognition for the contributions of non-state actors.
There is a growing tendency amongst legal scholars to see international law as undergoing a transition. Non-state actors such as NGOs have increasingly been able to influence the drafting of international treaties and conventions. Nevertheless, the reality is that, like federal states and cities, NGOs and private companies cannot sign onto the Paris Agreement and their legal status remains limited under international law. See: C. Evans ed. Indeed, promoting greater energy security in Europe has been a long-standing priority for successive US administrations, especially in terms of reducing dependence on Russian imports.
While the Trump administration has yet to clearly set out its energy policy, the topic of energy security has already featured prominently in the transatlantic dialogue between US Secretary of State Rex Tillerson and his EU counterparts. Tillerson has made it clear that the US would be interested in increasing its exports of liquefied natural gas LNG towards Europe over the next few years.
In addition, the EU Commissioner for Energy oversaw in June the signature of a memorandum of understanding between Croatia and Hungary regarding the construction of new infrastructure to enable bi-directional gas flows between them. This will make it possible to accelerate the construction of the Krk LNG terminal in Croatia, with the aim to create a North-South energy corridor in order to increase energy security for the Visegrad Group, which includes Poland, the Czech Republic, Slovakia and Hungary.
Livingstone and E. Multi-actor, multi-level governance for the transatlantic climate and energy dialogue As a result, there are clearly opportunities for the EU to increase energy security cooperation with the US under the Trump administration regarding LNG exports. However, two obstacles remain. First, much will depend on the evolution of USRussian relations under Trump.
The US President and Russian President Vladimir Putin have expressed a desire to re-establish diplomatic relations following a sharp deterioration under the Obama administration. This is mostly due to the US Congress, which succeeded in reaching a bipartisan agreement on a bill that broadened and enhanced current US sanctions against Russia, passed in August This involves constructing an offshore natural gas pipeline that would connect the city of Vyborg in Russia with Greifswald in Germany.
The expected quantity of natural gas that would flow through Nord Stream 2 is equivalent to that currently coming through Ukraine. This approach has been followed under Trump, with Secretary Tillerson expressing disapproval of the Nord Stream 2 pipeline to the European countries involved. Therefore, much will depend on how the EU handles this situation over the next few years.
Nevertheless, irrespective of whether or not the plan goes ahead, projects such as the Krk LNG terminal in Croatia will be implemented regardless of the fate of Nord Stream 2. LNG is not the only issue where the transatlantic energy dialogue can continue under the current US administration.
Trump has expressed an interest early on in extending the lifespan of US nuclear reactors, including for example restarting the construction of the Yucca Mountain nuclear waste storage facility, which had been put on hold due to political gridlock in Washington. Hence, there is an opportunity for the EU to cooperate with the Trump administration on nuclear energy, since many European countries possess advanced nuclear infrastructure.
Multi-actor, multi-level governance for the transatlantic climate and energy dialogue many German nuclear reactors. This may include discussions about common transatlantic regulatory reforms in order to enhance the competitiveness of the Western nuclear industry. At present, a majority of prospective nuclear facilities in Europe and the Middle East are meant to be built by Russian or Chinese stateowned companies.
This should encourage greater transatlantic collaboration over nuclear energy. Finally, the paradox is that transatlantic cooperation over LNG and nuclear energy will inadvertently yield positive results for mitigating climate change, as both energy sources involve a decrease in GHG emissions compared to conventional fossil fuels.
Nuclear energy itself is nearly carbon-free, even though GHG emissions occur for the building and dismantling of reactors, and nuclear waste remains radioactive for centuries. Likewise, natural gas has the lowest GHG emission rate per unit of energy compared to other fossil fuels, and emissions for the transportation of LNG are lower compared to piped natural gas.
In conclusion, there is great potential for the transatlantic climate and energy dialogue to evolve towards a multi-actor, multi-level governance framework over the next few years. Although the Trump administration has abdicated federal responsibility in this area, the US comprises a diverse and very active network of groups that are committed to implementing US climate pledges under the Paris Agreement and redouble efforts in defiance of Washington.
US states and cities have organized their own national networks on climate change, and many are also part of broader international coalitions of cities and regions, together with their European counterparts. Moreover, a majority of US companies support remaining in the Paris Agreement, as there are global market forces pulling the economy towards more sustainable development following the fall in costs for clean technologies and renewable energies.
Finally, while not expressing any interest in climate change, the Trump administration is considering reinforcing cooperation with Europe on certain energy issues such as nuclear energy and LNG trading, which may inadvertently have a positive impact on reducing GHG emissions. Therefore, there are clearly many opportunities for the transatlantic climate and energy dialogue to continue and evolve towards a multi-actor, multi-level governance framework over the next few years.
However, it is equally important to acknowledge. Multi-actor, multi-level governance for the transatlantic climate and energy dialogue the limitations of this framework from an international legal perspective. This already represents a significant improvement from the traditional state-centric conception of international law, where non-state actors are acquiring an increasingly important role as subjects and agents for international treaties and conventions. As a result, Europe should do everything it can to encourage Trump to reverse his decision, and leave the door open for a future US administration to rejoin the Paris Agreement in the years to come.
Barichella A. Clement C. Fisher D. Livingstone D. Phillip A. Redgwell C. Schalatek L. Shaw M. The Economist, The burning question: with or without America, self-interest will sustain the fight against global warming, November 26 — December 2, Victor D. A cette fin,. Ce projet permettra ainsi de consolider les acquis en ancrant ces principes consensuels dans le marbre du droit dur. Il regroupe 20 principes, et comporte 6 articles pour les dispositions finales.
Alcatel-Lucent, S. Magyar Telekom, Plc. En quoi consiste-t-il? Citons-en trois. Le premier est celui de la double peine. Privacy and Personal Data Protection. While the United States and the European Union share the goal of enhancing privacy protection, the United States uses a sectoral approach that relies on a mix of legislation, regulation and selfregulation. Moreover, the protection is guaranteed at the US Federal level and State level.
It will be repealed. Solove et P. Data Prot. The impact of the directive has been considerable. On the other hand, the US does not limit data exports to other countries. Congress considered but failed to adopt such a limit in the s.
The transfers of personal data therefore require the assurance of an adequate level of protection Dir. The adequacy of the level of protection afforded by a third country must be assessed in light of all the circumstances surrounding the transfer operation or set of transfer operations. Particular consideration shall be given to: the nature of the data; the purpose and duration of the proposed processing operation or operations; the country of origin and country of final destination; the rules of law, both general and sectorial, in force in the third country in question and the professional rules and security measures which are complied with in that country Dir.
The Commission may consider the domestic law or the international commitments of the third countries Dir. The transfer of personal data to a third country which does not ensure an adequate level of protection is prohibited Dir. The member states shall take the measures necessary to prevent any transfer of same type data to the third country in question Dir. Nevertheless, some derogations are provided by article Northwestern University Law Review, Vol.
Schwartz, Ibid. Firstly, the scope of the control by the Commission is more broadly defined. The European Commission takes into account how a particular third country respects the rule of law, access to justice as well as international human rights norms and standards and its general and sectoral law recital Secondly, the Commission will control the effectivity of an independent data protection supervision.
Such safeguards may consist of making use of binding corporate rules BCR , standard data protection clauses adopted by the Commission, standard data protection clauses adopted by a. International Journal of Constitutional Law, Forthcoming.
August 31, Furthermore, national security, public interest and law enforcement requirements of the United States prevail over the safe harbor scheme, without limitation or effective legal protection against the interference. The United States authorities can access to the personal data transferred from the Member States to the United States and process it in a manner incompatible, in particular, with the purposes for which it was transferred, beyond what was strictly necessary and proportionate to the protection of national security.
The Court also observes that the existing legislation does not provide for any way for individuals to pursue legal remedies in order to access personal data relating to them, or to obtain the rectification or erasure of such data, which in turn compromised the essence of the fundamental right to effective judicial protection.
Finally, the Court finds that the Safe Harbor Decision denies the national supervisory authorities their powers where a person calls into question whether the decision is compatible with the protection of the privacy and fundamental rights of individuals. After the Safe harbor: the Privacy Shield. In its Decision of 12 July , the Commission found that this new. In addition, the Privacy Shield determines that access by public authorities to personal data transferred under this framework for national security, law enforcement and other public interest purposes is subject to limitations and safeguards.
Finally, a central difference between Privacy Shield and Safe Harbor is an annual review that puts the EU in a position to warn US administrations preemptively against potential violations of the arrangement. Such review creates a threat of immediate suspension of the mechanism, which must be taken seriously. The Privacy Shield framework has been operational since 1 August and more than 2, companies have been certified, including Microsoft, Facebook, and Google.
Reviews of the Privacy Shield. On the other hand, the Privacy Shield shares the same problems as the Safe Harbor. One year after its adoption, on 18 October , the European Commission published the report to the European Parliament and the Council on the First annual review of the functioning of the EU—U.
Privacy Shield. Privacy Shield, OJ L , 1. Secretary of Commerce Wilbur Ross. The EU delegation also included eight representatives designated by the Article 29 Working Party, the advisory body bringing together the national data protection authorities of the Member States DPAs as well as the European Data Protection Supervisor.
On the U. Annual Joint Review on 28 November More broadly, it also focused on an assessment of U. Both documents reveal that some weaknesses remain, which is not surprising in light of the Schrems Case and the requirements outlined by the CJEU. The EU institutions ask for more guarantees and we will consider if we can reasonably wait for an improvement of the Privacy Shield by the American authorities in the future.
If not, there is a significant risk that this agreement will be, in its turn, invalidated by the Courts 2. Therefore, as highlighted above, from the beginning, the level of personal data protection used as a baseline is not as high as it should be. In addition, even if we forget this point and focus on the enacted framework itself, it is obvious that weaknesses on the ground are numerous.
Moreover, the change in Administration following the election creates some uncertainties and it remains to be seen how the Trump administration will respond to privacy issues over the longer term. In a word, the Privacy Shield remains fragile: on the one hand, some obligations are insufficient since the beginning 1. The Privacy Shield is composed of several annexes which create numerous difficulties and the nature of these texts is also confusing.
But these documents are only political promises and reminiscent of practices rather than legal enforcement mechanisms. They have therefore no legal or binding value. Additionally, they were written by the previous — Obama — administration and the willingness of the Trump administration to respect them is uncertain. Weak level of Protection. Concerning the content of the Principles themselves, the requirements applied to US companies are less stringent than the obligations imposed by the GDPR to their European counterparts.
Such differences distort competition. In particular, the material scope of the Privacy Shield still excludes some specific sectors as financial services, transport, telecommunications , which are not authorized to join the process of self-certification, because the FTC lacks jurisdiction over them. But telecommunications and digital content increasingly converge today, which leaves many situations out of protection.
Another point remains insufficient. Mass collection of data is allowed in the fight against terrorism if targeted collection is impossible. Consequently, it is necessary to express doubts concerning the effectivity of the limits related to the personal data treatments for national security purposes.
The organization of the annual review must also be discussed in depth and detail with American authorities, especially regarding access to documents. FTC Commissioners. Companies that want to join the Privacy Shield must be subject to the jurisdiction of the Federal Trade Commission20 or the U. Department of Transportation and certify to the U. Department of Commerce that they comply with the Privacy Shield Principles. The Department of Commerce maintains the list of companies that have joined the framework, while the FTC enforces the promises companies made.
The FTC has committed to determining whether or not Section 5 of the FTC Act prohibiting unfair or deceptive acts or practices in commerce has been violated. The FTC may obtain civil penalties for violations of an administrative order. See M. The corporations in question allegedly misled consumers about their participation in the Privacy Shield. Once again, there is a vacancy problem with the Trump administration, in effect limiting the effectiveness of the Privacy Shield.
Arbitration Panel. Among the recourse mechanisms, an arbitration option is available to individuals to determine, for residual claims, whether a Privacy Shield organization has violated its obligations towards individuals under the Principles and whether any such violation remains fully or partially un-remedied.
Under this arbitration option, the Privacy Shield Panel consisting of one or three arbitrators, as agreed by the parties has the authority to impose individual-specific, non-monetary equitable relief necessary to remedy the violation of the Principles.
Individuals and Privacy Shield organizations will be able to seek judicial review and enforcement of the arbitral decisions pursuant to U. Consistent with applicable law, the U. Department of Commerce and the European Commission will develop a list of at least 20 arbitrators23, chosen on the basis of independence, integrity and expertise. A call of interest has been published in the U.
Federal Register but, apparently, these arbitrators have not yet been nominated. The Ombudsperson role had also been vacant since January when the prior appointee, Ms. Novella, departed. Additionally, the Ombudsperson is not sufficiently independent and is not vested with sufficient effective powers. Indeed, if he is independent from the Intelligence Community, he reports directly to the Secretary of State who will ensure that he carries out his function objectively and free from improper influence.
Moreover, the WP29 asks for a declassification of internal procedures concerning the interactions between the Ombudsperson and the other elements of the Intelligence Community or oversight bodies. This lack of transparency is an obstacle to the trust between the US and the EU in this specific area. According to Section codified at 42 U.
Trump was inaugurated. Since January , the Board has lacked the three-person quorum required for all official actions. Since March , only one member remained. But the European Institutions assign superpowers to the PCLOB while the ability of a fivemember board with four part-time members, limited budget and a small staff to produce oversight over the well-resourced intelligence community has been questioned.
See also Paul M. As the European Parliament expressed in its Resolution of April ,30 the PCLOB is more limited in its authority and cannot undertake actions that require the approval of the Board such as initiating oversight projects or making oversight recommendations. This reality seriously undermines the compliance and oversight guarantees made by US authorities in this field. In a Resolution enacted on 6 April ,33 the European Parliament considers that the Privacy Shield is inadequate and calls on the Commission to conduct a proper assessment to ensure it provides enough personal data protection for EU citizens to comply with the EU Charter of Fundamental Rights and new EU data protection rules.
Weaknesses but Adequacy. Finally, despite all these weaknesses, neither the US nor the EU can truly afford to put barriers to transatlantic personal data flow and everybody has kept in mind how many years of work they put into negotiating the Safe Harbor and then the Privacy Shield. Therefore, in its first annual review, the European Commission concludes that the US continues to ensure an adequate level of protection for personal data transferred under the Privacy Shield.
However, at the same time, the Commission ask for further guarantees in the future. Persons in Signals Intelligence November 6, Paul M. In its first annual review, the European Commission considers that the practical implementation of the Privacy Shield framework can be further improved and makes no less than ten recommendations to that effect.
The EC asks for clarification of the information concerning the US companies' certification, strengthened controls and cooperation of the US authorities in charge of the enforcement 1. Indeed, actions must be undertaken to give Privacy Shield more sustainability and credibility to mitigate the risk of invalidation by the CJEU 2.
The review shows that companies which have applied for certification under the Privacy Shield, but whose certification has not yet been finalized by the DoC, can already publicly refer to their Privacy Shield certification. Therefore, the Commission recommends that companies should not be allowed to make public representations about their Privacy Shield certification before the DoC has finalized the certification. Firstly, the Commission recommends that the DoC conduct, proactively and on a regular basis, searches for false claims of participation in the Privacy Shield, and not exclusively in the context of the certification process.
To this end, the DoC should take additional measures, including internet searches. The experience of the Safe Harbor program learned that misleading practices weaken the credibility and solidity of the system. Secondly, the Commission recommends that the DoC also conduct compliance checks on a regular basis. The DoC could then make use of the annual compliance reports to identify possible compliance issues that may warrant further follow-up action before a company can be re-certified, or more systemic deficiencies in the functioning of the framework that need to be addressed.
The Ombudsperson should therefore also be able to bring such matters before the Court. This would be in the interest of improved cooperation between the authorities that implement and enforce the framework on both sides of the Atlantic. Moreover, the Commission recommends that the U.
Actions after recommendations? It means that the EC took into account the political issues associated with the current context. The problem is thus that a part of the Privacy Shield is political and not legal. The privacy guarantees are based on US promises rather than binding mechanisms. If the enforcement abilities are weak, the risk is that the Trump administration will not take them seriously, especially when privacy rights are not a priority on the presidential agenda. Nevertheless, other actors should push ahead for a better compliance of the Privacy Shield.
In January , the change of the U. Additionally, the more protectionist outlook of the Trump regime does not appear helpful to Privacy Shield. Section 14 provides that agencies shall ensure that their privacy policies exclude these persons from the protections of the Privacy Act regarding personally identifiable information. Also, the Judicial Redress Act of creates enforceable privacy rights for some non-resident aliens and its enactment was an element supporting the Privacy Shield Agreement.
Moreover, the Executive Order seems to restrict the discretionary authority of the Attorney General to designate the countries whose citizens receive the benefits of the Judicial Redress Act. Moreover, the federal agencies should probably stop taking discretionary actions based on the Privacy Act in favor of non-US citizens, even if their policies give them this power.
The proposal foresees no legally binding improvements. Secondly, the Presidential Policy Directive PPD , enacted on 17 January , establishes the policies and procedures governing the safeguarding of personal information collected from signals intelligence activities concerning the surveillance of Americans by Office of Intelligence and Analysis employees.
It extended privacy protections to citizens of foreign countries by requiring that surveillance be targeted carefully for defined and legitimate purposes. National Security Agency NSA to collect and analyze emails and other digital communications of foreigners living overseas.
The current debate on the reauthorization of Section provides for the U. Administration and Congress an opportunity to strengthen the privacy protections contained in FISA but the commitment of the Trump Administration to consider this possibility is doubtful. Judicial Challenges.
In its first annual review, the WP29 found several significant concerns that need to be addressed by both the Commission and the US authorities. In case no remedy is brought, the member of WP29 announced that they would take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the CJEU for a preliminary ruling. The groups allege that the adequacy decision is incompatible with the Charter of Fundamental Rights of the European Union and does not provide sufficient protection for EU citizens.
The first action was declared inadmissible TPE, Ord. Finally, it is impossible to say if the European Court of Justice will take into account the US current policies. If any one of these developments may not, by themselves, be sufficient to fatally undermine the privacy shield agreement, these changes viewed together could create instability35 and challenge this fragile political agreement. Building on practice under the Directive, an adequacy determination concerning a particular territory or a specific sector of a third country is explicitly allowed by the GDPR art.
In specific sectors like the financial, health or children online protection sectors, the US Constitution and the Federal privacy statutory laws could comply with the GDPR requirements. We should consider this opportunity for the future. At Sciences Po, she takes part in the pre-doctoral preparation program. She also studied philosophy at Paris Nanterre University. She spent the third year of studies at the University of Chicago, where she mostly studied law, philosophy, and Russian.
The development of disruptive technologies, the globalization of the internet and the ability to move data across borders, which govern the digitization of economies, are transforming international trade. In response to the regulatory issues it raises, government are increasingly intervening to restrict the free flow of data globally, to regulate access to the internet and to limit what content can be accessed.
The article shows how the United States and the European Union cooperate in this regard, especially in terms of privacy. Also, the digitization of international trade generates challenges and opportunities for international trade law. The WTO agreements fail to comprehensively address digital trade issues; most digital trade rules have been developed in plurilateral and regional trade agreements.
Regulating Transatlantic Digital Trade Cooperative Endeavors, Remaining Tensions, Political Hurdles European Union have used trade agreements to address transnational digital issues and to limit digital protectionism. It shows that, even though the United States and the European Union share similar objectives and find common grounds on rules to regulate certain aspects of digital trade, differences between Washington and Brussels over how to govern digital markets persist.
The article highlights the remaining tensions in the transatlantic dialogue, especially in regard to privacy, and considers some recommendations for the European Union institutions. Digital technologies and cross-border data flows underpin an increasing volume of economic activity. Data fuels the digitization of economies and has become an elementary component of a growing range of economic activities, in all sectors, and for a growing number of participants in the global economy, of all sizes.
In this context, the development of disruptive technologies, the globalization of the internet and the ability to move data across borders are transforming international trade. Trade remains subject to comparative advantages, information asymmetries, tariff and non-tariff barriers, and the like.
However, new business models, which increasingly rely on the ability and capacity to collect, process, aggregate, and transfer data across borders, create new trade flows, while modifying existing trade patterns. In the global economy, the growth of digital platforms allows a rising number of players to export goods. Data collection and analytics underpin the development of new services which add value to exports of goods. As for trade in services, new technologies offer the possibility to produce, distribute, market, sale and deliver increasingly various services online, thereby blurring the distinction between modes of supply1 and raising new challenges for designing trade and investment policies.
Also, emerging technologies, for example distributed ledgers and additive manufacturing, will further alter trade patterns. Additionally, the movement of data across border increasingly underpins the trade environment. Data flows have become assets that can be traded in themselves and the means through which global value chains are organized. They are also at the core of innovative service supply models such as those related to the Internet of Things and cloud computing.
In response to the regulatory issues raised by the transformation of trade at the international level, governments are increasingly intervening to restrict data flows, to regulate access to the internet and to limit what content can be accessed. Some interventions are driven by public policy goals e. The digitization of economies raises a range of opportunities and challenges for international trade law, and the framework of the WTO is inadequate in addressing complex issues of the digital economy.
Since , a few rules combined with constructive decisions but limited holdings of the Appellate Body5 have ensured that the institution remains relevant in the digital era, but international trade law does not provide with adequate tools to regulate data flows, mainly because various regulatory aspects fall outside its scope. Divides between countries on issues such as surveillance and censorship, privacy and cybersecurity are not efficiently addressed at the multilateral level.
Yet, many policy issues are central to trade in the global digital economy. Some regulatory concerns have been partially addressed in recent trade agreements which contain provisions intended to facilitate cross-border data flows and thus foster digital trade.
Bilateral and regional preferential trade agreements have partially shaped the regulatory environment for digital trade. In this context, the cooperation between the European Union and the United States has been limited, but nonetheless substantial. The European Union and the United States are economically and digitally integrated areas within the global economy. Department of Commerce to business, professional and technical services, financial services, insurance services, telecommunications and intellectual property rights.
Jessica R. Data flows underpin transatlantic economic relations, that is, digitally-enabled exports and imports of goods and services as well as virtually any other economic relation. The European Union and the United States are therefore in the uniquely opportune position to shape the architecture and to set the rules for the digital world.
However, both the European Union and the United States are struggling to comprehend and to address the changes induced by the digitalization of their economies. Tensions over privacy and security hamper the ability of policymakers to work cooperatively to tackle challenges. The negotiations of trade agreements have revealed the current limits of cooperation between the European Union and the United States.
However, there appears to be more political hurdles than structural divergences between the United States and the European Union over how to govern the digital economy. As for now, negotiations have led to more inertia than convergence. Cooperation Across the Atlantic for the Regulation of Cross-Border Data Flows: The Example of Data Privacy and Data Protection Because many internet-based technologies used to order, produce or deliver products and services, involve the transfer of information relating to identified or identifiable persons, the rules governing personal data protection affect digital trade, and more specifically cross-border digital trade when they regulate personal data transfer out of or into a jurisdiction.
Issues related to data protection and privacy offer a good example of matters that have required the European Union and the United States to cooperate, but remain subject to tensions in the transatlantic dialogue, mainly because of a divergence between legal approaches to privacy. The globalization of the internet and the development of digital technologies such as cloud computing 7 or the Internet of Things have generated significant legal challenges and now require the United States and the European Union to strengthen their cooperation.
Some provisions therefore cover personal data transfers outside the European Union, thus directly affecting digital trade. From the European Union perspective, the fact that the United States lack a generally-applicable body of law regulating the processing of personal data by private actors was an obstacle to the enforcement of the data protection regime.
A number of laws, such as the Fair Credit Reporting Act and the Gramm-Leach-Bliley Act, restrict how private actors in specific sectors may process personal data they collect. However, there is no general requirement to obtain consent from data subjects for the collection, recording, organization, structuring, storage, alteration, consultation, use, disclosure by transmission, dissemination, combination, destruction of personal data in sectors where data transfers are not regulated by specific statutes.
Patriot Act , which may lead U. In , after several years of negotiations, the European Union and the United States agreed upon a mechanism under which companies could transfer personal data from the European Union to the United States provided that they uphold some principles designed to assist compliance with the Data Protection Directive.
Companies could benefit from the mechanism by adhering to the principles self-certification. However, this EU-U. Europe started prioritizing privacy and personal data protection in regard to commercial activity long before.
For example, the jurisdiction of the Federal Trade Commission, which was the authority in charge of enforcing selfcertification pledges, did not extend to financial service companies, which had to adopt binding corporate rules ensuring that they would apply the protections of personal data of Europeans when exported outside the European Union. Safe Harbour, regulating internet platforms, and implementing more stringent data protection requirements through the General Data Protection Regulation.
Safe Harbour in , had not taken into account whether the United States provided adequate controls over government access to data collected by private actors, thereby ensuring that such access is necessary and proportionate. In the aftermath, and despite very different ways of conceiving data protection and privacy, the European Commission and U. Privacy Shield, another legal mechanism based on self-certification by companies that they will comply with principles. It includes more stringent obligations for companies that transfer personal data to the U.
However, these cooperative endeavors give the misleading impression of consensus and consistency. The European Union and the United States have adopted and always followed different legal approaches to data protection and privacy. ECJ, in re Maximilian Schrems v. Constitution does not contain any explicit reference to privacy,11 whereas it is considered as a fundamental right in the European Union.
In addition, differences over how to define the appropriate balance between economic growth and personal data protection directly impede transatlantic digital trade. The negotiations of trade agreements clearly revealed the current limits of cooperation between the United States and the European Union. Several agreements designed and implemented within its framework deal with matters affecting digitally-enabled trade.
For examples, the Information Technology Agreement 13 ITA eliminates duties on virtually all information technology products; the Agreement on Trade-Related Aspects of Intellectual Property Rights TRIPS ensures the protection and enforcement of some trade-related intellectual property rights relevant to digital technology, such as computer programs; all the general provisions of the General Agreement on Trade in Services GATS are applicable to the supply of services through electronic means, including the exceptions which permits Member states, under certain circumstances, to maintain inconsistent measures in the interest of protecting public morals, privacy 14 or national security, provided that such restrictions are applied on a nondiscriminatory basis, necessary and proportionate.
However, on many occasions the U. Supreme Court has ruled in favor of privacy interest and derived the right to privacy from the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth Amendments to the U. Regulating Transatlantic Digital Trade Cooperative Endeavors, Remaining Tensions, Political Hurdles However, the language of these instruments predates the Internet, cloud computing, and the Internet of Things, among other technological developments, and the WTO now fail to comprehensively address digital trade issues.
For example, it is unclear whether the Annex on Telecommunications applies to access to, and use of, the Internet network and related services. In this context, trade agreements have provided a framework to govern cross-border data flows. Both the United States and the European Union have in recent years included non-binding provisions in trade agreements to ensure that data move freely across borders.
The United States was the first country to both include provisions related to digital trade in trade agreements and to use trade policies to govern cross-border data flows. Two decades later, it remains the most vehement promoter of trade agreements as a policy instrument to advance the objectives of liberalizing the digital economy. The negotiations of TTIP reveal that, even though the United States and the European Union share similar objectives and find common grounds on rules to regulate certain aspects of digital trade, differences between Washington and Brussels over how to govern digital markets persist.
The purpose of TTIP is to promote trade and investment flows between the European Union and the United States to foster economic growth in markets on both sides of the Atlantic. It includes network access and use on a cross-border and technological neutral basis, free cross-border information transfers from foreign services suppliers and customers, absence of data localization requirements and foreign ownership restrictions, use of local infrastructure on a nondiscriminatory basis, and permissive licensing and authorization regimes.
At the time, issues related to e-commerce and cross-border data flows were not a bone of contention between the United States and the European Union. Political tensions have paralyzed the transatlantic negotiations on digital trade. It includes the commitment not to impose customs duties on electronic transmissions, which are considered trade in services, and to make the provision of services by electronic means conditional upon prior authorization or any other requirement.
The text also allows for contracts concluded by electronic means as well as electronic trust and authentication services, protects end-users from unsolicited direct marketing communications and promotes regulatory cooperation. It also specifically encourages cooperation on personal information protection and cybersecurity. In , endeavors towards the replacement of the EU-U.
Safe Harbour agreement permitted negotiations to go forward in respect of e-commerce provisions common to the two sides. Also, it should be noted that, given that digital technologies underpin a growing range of economic activity, other matters on the table such as tariffs on ICT products not covered by the ITA, investment in the services sector, and cross-border trade in services would affect digitally-enabled trade. TTIP offers a framework for regulatory cooperation, for example on technology standards, e-labelling, e-accessibility, cryptography and other matters23 as well as convergence of regulations on cross-border in digitally delivered services.
Regulating Transatlantic Digital Trade Cooperative Endeavors, Remaining Tensions, Political Hurdles general issues such as net neutrality, interoperability measures, privacy, and antitrust rules. The overall political environment does not seem favorable to the adoption of a comprehensive agreement on digital trade-related issues. However, should TTIP be further negotiated, it would provide an opportunity for the European institutions to define a template for trade agreement provisions related to digital trade, such as e-commerce services or cooperation in respect of ICT regulation, for the purpose of explicitly including the digital economy in subsequent trade and investment negotiations.
As for TiSA, negotiations have been ongoing since April , although no new round has been scheduled in TiSA focuses on liberalizing trade in services and is intended to provide for common rules in respect to digital trade and related crossborder data flows, as well as to expand market access beyond the current commitments in the framework of the GATS. Should negotiations of TiSA be continued and result in a plurilateral agreement outside the framework of the WTO, a chapter on digital trade — or ecommerce — would likely address online consumer protection, interoperability, trade barriers to cross-border data flows and other areas, similar to the provisions in TPP.
For example, a watch that records measures during sleep or while walking could be qualified as a fitness monitoring service, not a good, much like a driverless car could be considered as a transport service. In this regard, the European institutions should ensure certainty in the legal framework for transatlantic data transfers. Although the EU-U. Privacy Shield agreement helps improving legal certainty, relying on self-certification entails some risks.
Uncertainty remains. Much of the upheaval in data protection rules in the European Union over the past years has been fueled by concerns with respect to U. Regardless of the obligations it places on U. Privacy Shield is unlikely to alleviate these concerns. Also, the EU-U. It is partly due to the failure of governments to adequately inform citizens on the consequences of ongoing disruptions and the state of transatlantic relations.
Trust underpins trade, and changes to law and practice regarding access to personal data for purpose of national security and law enforcement may therefore indirectly hamper digital trade. In this regard, cooperation between the U.
Privacy Shield to ensure that it includes enough personal data protections to comply with the European Charter of Fundamental Rights and the General Data Protection Regulation. The directive will enter into force in May Uncertainty remains as to what it means for private actors, especially given that the European Commission cannot require Member States to adopt a particular approach when implementing the directive and the lack of guidance from the European Union Agency for Network and Information Security.
Which companies will be identified as operators of essential services? What security measures will they have to implement? Concepts such as data protection, privacy, commercial use of data, digital flows, digital rights, data transfer, data transmission, et cetera, are often bundled together in the discourse, although they relate to different policy and legal issues.
Also, the terms used in the discourse about digital transformation should be more precisely defined to more accurately identify the issues at stake. Whether some words are being used interchangeably or not is unclear. Lack of clarity of the technical terminology and conceptual framework impedes the efficiency of the debate.
What is more, the transatlantic dialogue would benefit from the establishment of an institutionalized, single forum, for example such as the EU-U. Energy Council, to bring the various transatlantic partners together and thereby advance a cross-sectoral discussion.
It would require involving not only the European Commission, but also Member States and the Council, the European Parliament,32 and relevant key players. For example, issues related to privacy are politically sensitive and guidance from both the members of U. Congress and the members of the European Parliament is critically important for the European Commission and the U. Also, discussions occurring between committees of the European Parliament and their counterparts at the U.
Congress are opportunities to develop multisector perspectives. Cooperation between the legislators could, for instance, allow to compare how the European Union and the United States are considering regulating the Internet of Things, in regard to privacy, encryption, and the like. Mavroidis is Edwin B. SCOPE OF THE PAPER Building on Creach , in this paper, I entertain three questions: what exactly are the transatlantic partners supposed to regulate in the realm of digital trade; why, in light of the subject-matter as defined, is there a need to regulate; and finally, where and how should transatlantic regulation take place.
This last question is for all practical purposes a choice of forum issue, taking of course, into account the comparative advantage endowments of possible, realistic alternatives. I take each question in turn. I assume of course, that there is a willingness to transact, and go beyond whatever commitments they have already made at the WTO World Trade Organization -level. Different institutions, and various authors have used different names to address more or less the same issue.
E-commerce covers purchase of traditional goods and services through electronic means e. E-commerce and digital trade are, following this definition, subgroups of e-trade. E-trade is but an aspect of digital economy. It does not extend to cover say egovernment, that is, the possibility to pay taxes via the Internet, or to comment, through the same means, on legislative proposals. E-government in equilibrium, undeniably influences trade patterns, but is not e-trade as per the definition adopted here.
Since we are dealing with trade in this paper, it is e-trade, as defined above that is the subject-matter of the eventual transatlantic regulation. The response to this question is quite straightforward, and Creach does an excellent job in describing the need to regulate.
Both the United States, as well as the European Union have moved in to regulate this type of transactions. Sometimes they did so for different reasons. The transatlantic partners do not see eye to eye on protection of privacy for example, and how much it should impact e-trade. Sometimes, the intensity of the regulation is asymmetric, as the two partners are on occasion asymmetrically averse, even though they both see the need to regulate. Lastly, the degree of integration across the two markets also exerts influence in this respect.
The EU single digital market is still in process, whereas the US federal government has legal power to intervene with respect to most issues on this score. Because regulatory interventions are often asymmetric, there is a need to establish equivalence. The EU executive will have to perform a conformity assessment, and pronounce on whether the United States meets its concerns. It can do it unilaterally, but then uncertainty looms as to the outcome.
In doing that, they have of course, different options, ranging from recognition to harmonization. They would obviously want to go beyond nondiscrimination, since the latter does not do much to thwart uncertainty. Contracts in this realm are highly incomplete, and their interpretation by national, or even international judges, might not be perceived as sufficient insurance policy against uncertainty.
This brings us to the forum issue. The obvious starting point in this discussion is the WTO. At the very least, through their eventual agreements the European Union and the United States should not be violating whatever they have committed to do at the multilateral level. For the reasons that I mention below, it seems to me that the multilateral level is not the most appropriate forum, under the circumstances.
In various publications, the OECD has contributed to a better understanding of the facts. E-trade is expanding fast, but not at the same pace for all the trading community. It definitely presents developing countries with vast opportunities for trade growth, but it would be way too demanding to drag them all to a negotiation about geo-blocking, data localization etc.
They have other, more pressing fish to fry at this time. Additionally, a non-thematic negotiation risks derailing the trading partners and eviscerating the intellectual integrity of the negotiation itself. On the one hand it is clear that, that more there is to negotiate, the likelier that the negotiation will be successful. On the other hand however, political economy might dictate unwarranted outcomes such as a less ambitious agenda in digital trade in the name of delaying openness of the farm market.
Furthermore, the attitude of the current US administration towards the WTO does not lend much hope that a multilateral deal is a realistic prospect. Indeed, one need only to look at the output of the recent Ministerial Conference in Buenos Aires to cement the belief that the WTO right now is treading water. At this point it is in quasi-moribund state. Free-trade areas FTAs , like TTIP, present trading partners with the obvious advantage of providing them with a forum ideally suited to like-minded players.
From a cosmopolitan perspective though, they represent a risk. Issues are negotiated behind closed doors, transactions costs are increased since different FTAs deal with overlapping subject-matter in asymmetric and often hard to reconcile manner, and thus, costs will be shifted to nonparticipants. This is especially true if the purpose of a negotiation is to provide a template for regulation of e-trade, in which case the option we discuss next seems the most promising.
Hoekman and Mavroidis have voiced arguments in favour of extensive use of plurilateral agreements, especially in areas where the current WTO framework is wanting or totally missing. Plurilateral agreements in this line of thinking, are the hothouse of future multilateral regulation. By keeping the umbilical cord to the WTO tight since, unlike FTAs, they require approval by the membership; WTO members might join in in the future; disputes are submitted to WTO panels , they combine the advantages of a forum for like-minded players with the potential for, eventually, multilateral regulation, as the door remains open to other WTO members to join in.
Plurilateral agreements are thus, quite convenient halfway houses between regionalism and multilateralism. At the moment of writing, the WTO can only afford to renew the moratorium for ecommerce. This arrangement simply provides for duty-free treatment for electronically traded goods and services. This is a step in the right direction, but definitely does not coincide with the subject-matter of e-trade as we know it in various FTAs. The relevant discussion in Creach is quite telling in this regard.
A simple perusal of chapters on digital trade, irrespective whether one looks into European-, American- or Asian FTAs, amply confirms this point. Assuming willingness to go forward and provide certainty in e-trade between them, the United States and the European Union could serve their interests by cooperating with like-minded countries in the realm of a plurilateral agreement.
References Creach, Marion Anne. Hoekman, Bernard M. He acted as counsel in proceedings before the International Court of Justice. He received his LL. Whilst in a constant quest for the sophistication of their craft, international lawyers relish simplistic, repetitive narratives. They continuously represent the world that they inhabit as undergoing cataclysmic changes calling for the intervention of international law, itself portrayed as being in a state of crisis and in need of renewal.
Their simplistic historical narratives also pertain to the way in which they represent themselves as a group of professionals and the configuration thereof. Indeed, when it comes to representing themselves, international lawyers generally indulge in some Manichaeism of sort as they portray their discipline as fractured along very binary lines: the centre versus the periphery, orthodoxy versus self-reflectivity, reform versus rehabilitation, the critical versus the non-critical, the scholars versus the practitioners, the idealists versus the realists, the autonomists versus the pluralists, the unitarians versus the fragmenters, etc.
This essay grapples with one of these mundane self-representations, namely the narrative that pits formalists against non-formalists and that locates the dividing line between them somewhere in the Atlantic Ocean. It particularly seeks to challenge the common assumption among international lawyers, according to which Europeans are more wedded to formalism than their American counterparts who, as the story goes, have successfully emancipated themselves from the straightjackets of legal forms.
The following sections thus take issue with this common self-representation whereby the Europeans are the naive believers in formalism and the Americans the realistic deniers of formalism. Such a narrative, it is argued here, does not do justice to the subtle and complex role ascribed to legal forms on each side of the Atlantic.
This essay accordingly sheds light on the two deceptive dimensions of this common narrative about formalism with the aim of showing that both Europeans and Americans continue to demonstrate attachment to legal forms, the only significant differences between them lying in the way in which they seek to reinvent formalism and the role of legal forms.
This essay ultimately makes the point that both American and European international lawyers live in denial of their continuous engagement with legal forms. This short essay starts by discussing the two sides of the narrative whereby Europeans are held to be formalists and American non-formalists.
According to this image, European international lawyers are represented as perpetuating the centrality of legal forms. Certainly, this side of the narrative is not entirely groundless. Europeans bespeak a stronger attachment to formalistic modes of reasoning. Indeed, it seems conspicuous that Europeans — for good or bad reasons — make formal sources a linchpin of law-ascertainment, formal techniques of interpretation a key in content-determination, and formal responsibility a kingpin of the apportionment of liability in international law.
Europeans are similarly and correspondingly known for their aversion to deformalisation. In the same vein, it seems that for Europeans, the move away from formalism brings about a dangerous loss of accountability, while also frustrating the distinction between law and non-law. Indeed, it seems that Europeans have been critical of the cost of formalism and have continuously sought to recalibrate the role of legal forms. It is no coincidence in this respect that Europe has been the cradle of several intellectual projects calling for the rejuvenation of formalism and of what we do with legal forms.
Several other endeavours to reinvent formalism with some self-declared self-reflexivity have been witnessed. Among them, international constitutionalism — which primarily finds its roots in European legal thought — stands out and can be construed as an attempt to re-think the role of legal forms.
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I also worked for the World Bank Group as a legal consultant to assist the reform of a West African country mining sector legal framework. I hold a law degree and a LL. I also hold a Postgraduate degree from the Law school of Tanzania. I hold a LL. I am drawn to corporate law as it provides an insight on how law is imposed in a business environment that is very practical in the global development affairs. The initiative helped me gain more insight on the issues prevailing in the Tanzanian energy sector and Africa as a whole.
I also got an opportunity to intern at Norton Rose Fulbright Tanzania offices for six months from August, My thesis evaluates the efficacy of self-regulation mechanisms used by mining companies on labour standards. I have experience as a legal researcher from working for different companies and organisations on mineral law, labour law, occupational health and safety matters and human rights.
In , I was a researcher for the Chief Justice of Namibia. My research interests include the governance and regulation of the extractive sector, labour relations and occupational health and safety in the mining sector. Participating in the AMLA project and subsequently being part of the Legal Research Team for has broadened my understanding of the different mineral law frameworks across the African continent. It has also provided a strong networking platform with other researchers and experts in mineral law.
I am a student pursuing a postgraduate diploma in legal practice at the Law School of Tanzania. I also hold a Bachelor degree in Law LL. B from the University of Dar es salaam. I also participated in leadership training at the East Africa Uongozi Institute on the theme: Leadership and Social transformation. My research area of interest revolves around environmental issues, regional integration and human rights. Besides that, I won a research contest on the topic of the Mandatory listing on the Stock Exchange of Mozambican Companies with reference to the Mining and Petroleum legislation.
Since I have been working for PricewaterhouseCoopers PwC as consultant on Corporate and International Tax which includes assisting clients in the mining sector. Lastly, during my studies I was a consultant for the Kaya Clinic and Legal Practice Centre of the Faculty of Law at my University aimed at providing legal assistance on Land Law and related issues, to people from the community in financial need who cannot afford the legal fees.
My career aspirations include becoming an Intellectual Authority in the Legal and Extractive sector. I am a student at the University of Pretoria in South Africa. This is perfect for me as I discovered my love of research while doing my dissertation. The topic was the relationship between the ASM and LSM sectors, and the optimal means of regulating this relationship. My research is primarily on the use of transboundary aquifers in African States.
I have participated in the Jessup international Moot court competition three times where I was part of the best African team twice and was the highest ranked African speaker in Part of my research touches on the role extractive industries can play in enhancing intra-African trade and how best we can overcome some of the challenges plaguing the extractive industries sector for purposes of promoting trade in Africa.
I have a passion for research and I am currently working with different members of staff on research projects in Criminal Law and Land Law. Having grown up in a country where female participation in the management of natural resources has been largely undervalued, I have a firm belief in the importance of women as key actors in Mineral law and Environmental law. As a student at the University of Ghana, I held a number of student positions. I was one of the longest serving members of the senate of the Law Students Union eventually becoming the Head of Senate in my final year.
I am passionate about the rights of women and hope to tailor my legal career to championing these rights. I have a desire for research in Mining and Corporate law. I hope to have a practice in corporate law and litigation in future. I have interests and expertise in the areas of governance, access to justice, human rights and advocacy. When not engaged in academics and research, I like to travel, cook and improve the lives of those around me through Christian ministry and pro bono legal services.
My work entails reviewing the quality of the research delivered by the current Legal Research Team. I hold a B. Com in Economics and recently completed an LL. I volunteered as a legal advisor at the UCT Law Clinic in order to assist those who cannot afford legal fees.
Amongst my academic accolades, I was a recipient of the Economics class medal in recognition of my special ability during the course of my undergraduate study and my Economics essay was selected for entry into the National Budget Speech Competition. I am an Ivorian Trade and Investment lawyer.
I have always had a strong interest in trade and regional integration in sub-Saharan Africa, and thus I embarked on an active participation in the Annual African Moot competition on the World Trade Organization law from to The training that preceded my selection introduced me to mining legal frameworks on the African continent and to the various topics on the subject, a whole new world yet unknown to me. It is mandatory to procure user consent prior to running these cookies on your website.
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