Apr 18, 2021 | Volume 62, Issue 1
By: Rebecca J. Hamilton
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Abstract
Social media platforms are the public square of our era—a reality that has been entrenched by the widespread closure of physical public spaces in response to the COVID-19 pandemic. This online space is global in nature, with over 3.6 billion users worldwide, but its governance does not fall solely to governments. With the rise of social media, important decisions about what content does—and does not—stay online are made by private technology companies. Reflecting this reality, cutting-edge scholarship has converged on a triadic approach to understanding how the global public square operates—with states, users, and technology companies marking out three points on a “free speech triangle” that determines what content appears online. While offering valuable insights into the nature of online speech regulation, this scholarship, which has influenced public discussion, has been limited by drawing primarily on a recurring set of case studies arising from the United States and the European Union. As a result, the free speech triangle has locked in assumptions that make sense for the United States and the E.U., but that regrettably lack broad applicability.
This Article focuses our attention on the global public square that actually exists, rather than the narrow U.S.- and European-centric description that has commanded public attention. Drawing on interviews with civil society, public sources, and technology company transparency data, it introduces a new set of case studies from the Global South, which elucidate important dynamics that are sidelined in the current content moderation discussion.
Drawing on this broader set of materials, I supplement the free speech triangle’s analysis of who is responsible for online content, with the question of what these actors do. In this way, activity within the global public square can be grouped into four categories: content production, content amplification, rule creation, and enforcement. Analyzing the governance of the global public square through this functional approach preserves important insights from the existing literature while also creating space to incorporate the plurality of regulatory arrangements around the world. I close with prescriptive insights that this functional approach offers to policymakers in a period of unprecedented frustration with how the global public square is governed.
Apr 18, 2021 | Volume 62, Issue 1
By: Matthew S. Erie
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The COVID-19 pandemic has cast doubt on taken-for-granted economic and governance models. Against the backdrop of increasing tension between the United States and the People’s Republic of China (“PRC” or “China”), China is presenting itself as an alternative center for governance. Pursuant to these seismic shifts, the analysis must attune to how China creates cross-border order. Whereas scholars have examined China’s use of trade and investment law, inadequate attention has been paid to how the PRC grapples with the domestic law of host states. As the PRC seeks to protect its investments abroad and promote its geopolitical interests, it is confronted with challenges familiar to capital-exporting countries, yet there is little understanding of China’s approach to ordering or what it means for host states, developed economies, and global governance.
This Article seeks to provide an analytical framework for China’s approach, and specifically the role of law in global development. Instead of previous approaches to “law and development,” China is reluctant to engage in legal reform of host states that receive Chinese capital; rather, Chinese investors try to avoid local law. “Chinese law and development” (“CLD”) creates order through transnational law, which builds on legal infrastructures both from the United States and from China, supplemented by extralegal and nonlegal norms. These normative orders protect Chinese investments by mitigating risk as a precondition to promoting China’s economic and political interests overseas. Drawing on three years of fieldwork and nearly 150 interviews in China and in host states, this Article presents the first empirical study of CLD to articulate an analytical theory to understand this phenomenon. In assessing CLD, I query whether CLD is good for developing states, and identify a research agenda for the study of the legal and regulatory dimensions of Chinese economic globalization.
Apr 18, 2021 | Volume 62, Issue 1
By: Stephen Kim Park & Tim R. Samples
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The unique characteristics of sovereign debt finance provide fertile ground for opportunistic behavior and intractable disputes among states and their creditors. Lacking reliable contractual enforcement mechanisms and formal bankruptcy procedures, the sovereign debt restructuring process is hampered by fragmentation, costly standoffs, and unpredictable outcomes. The result is a non-system of ad hoc, decentralized negotiations and litigation that some fear is perpetually at risk of falling apart. To address these concerns, recent years have seen renewed efforts to fix sovereign debt through soft law, public-private collaboration, and informal governance mechanisms, which this Article collectively refers to as sovereign debt governance. This Article focuses on one of the most prominent proposed reforms in sovereign debt governance: the use of creditor committees to facilitate engagement between a sovereign debtor and its private external creditors. Notwithstanding the uniqueness of sovereign debt in international law and financial regulation, we explain how the debtor-creditor relationship reflects a fundamental governance challenge amidst individual distrust and collective disorder. This challenge suggests that the sovereign debt restructuring process can be improved by reforming the procedural rules and institutional frameworks that govern debtor-creditor engagement. To assess this proposition, we examine the use of creditor committees in the current era of sovereign debt, focusing on factors that influence the conduct of debtors and their creditors vis-` a-vis each other. Drawing on our observations, we consider the potential value and limitations of creditor committees in the context of sovereign debt governance.
Apr 18, 2021 | Volume 62, Issue 1
By: Alyssa S. King
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A “global” civil procedure has emerged and found its way into debates over procedural reform in both international and domestic arenas. Global civil procedure includes the procedural rules, practices, and social understandings that govern transnational litigation and arbitration. A global civil procedure norm is a norm adopted across courts or arbitration providers with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration. Global civil procedure norms are at stake in multiple present trends and debates, including model laws in commercial arbitration, the procedure of international tribunals, the debate over investment dispute resolution, the rise of courts oriented towards international litigation, and sprawling litigation spanning multiple jurisdictions and fora.
On a surface level, the values reflected in global civil procedure seem to be roughly the same across jurisdictions. A common language has emerged around competition for litigation business and procedure values such as efficiency, certainty, and impartiality. Yet different legal systems do not necessarily agree on the purpose of various shared elements of global civil procedure. For democracies, for instance, the purpose of procedural reforms might be to facilitate access to justice. Other countries may favor the same reforms because they facilitate top-down administrative control of judges. Surface agreement can submerge divergent logics that may ultimately lead to very different applications of harmonized rules.
This Article begins by introducing the concept of global civil procedure, who uses it, and how. Next, it considers several examples of the phenomenon including conflicts of interest rules for adjudicators, aggregation, and discovery or disclosure rules. Finally, it considers the limits of global civil procedure. Although the rhetoric of procedural competition can be heard across systems, procedural values do not necessarily translate both in terms of enduring divisions between legal traditions and in terms of applications by current political regimes.
Apr 18, 2021 | Volume 62, Issue 1
By: William Ossoff
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The rule of non-intervention is a longstanding rule of customary international law whose precise content has been a subject of constant contestation since its formation. As such, the rule has served as only a limited deterrent to state behavior. However, the growing prevalence of state-sponsored cyber political operations, such as Russia’s interference in the 2016 U.S. presidential election, has revived interest in defining the rule of non-intervention. Powerful states who historically have not been the strongest proponents of the rule, such as the United States, are now vocal about its applicability in the cyber context.
This Note provides, in Parts I and II, an account of the historical debate over the definition of nonintervention. It provides a unique contribution to the scholarly literature through a novel comparative analysis, in Part III, of the terminology used by states to describe the rule of non-intervention’s applicability to cyber operations. It then applies these various definitions, in Part IV, to a range of hypothetical cyber operations in order to help determine which operations might violate the rule of non-intervention. As the Note concludes, the rule’s deterrent effect on future cyber political operations will depend in no small part on which state’s definition, if any, becomes predominant.
