The Perspective of Trade and Private Actors:

How Are Trade and Commerce Driving the Future?

International trade and the behaviour of private actors make up the final theme addressed in the think pieces in this volume. The dramatic expan-sion of international trade may have been a major driver of the interna-tionalisation of law but the regulation of international trade appears to still show some serious defects. Again, legal pluralism may hamper taking the next step towards true international trade law. Whereas legal pluralism is sometimes used to refer to different sets of values, it also appears that real interests are at stake. A next step toward international law thus requires that the old big powers (US and Europe) also compromise on their inter-ests. Gabrielle Marceau, in her account of the future of international trade law, is asking the question: how best to deal with new trade and non-trade concerns? Marceau departs from the premise that while the rules of the World Trade Organisation (WTO) essentially intend to pro-mote trade, these rules do not propro-mote trade above all else, as trade inter-acts with issues other than trade. Marceau’s piece offers a conceptual framework for categorising the different manners in which non-trade con-cerns are addressed in the WTO agreements. Employing this framework, she analyses how various non-trade concerns of contemporary and future significance for the WTO (which either impact or are impacted by the trade matters) might be addressed in international trade. Marceau demon-strates that where WTO rules have been introduced to regulate interac-tions between trade and non-trade concerns, they have generally been framed to promote trade. She also argues, however, that existing WTO rules do not fail to acknowledge the need for non-trade concerns (NTCs) to circumscribe trade on occasion, as evidenced in broadly interpreted ex-ceptions.

Imelda Maher’s think piece is concerned with competition law.

She argues that despite the globalisation of international trade, efforts to create an international competition law under the aegis of the WTO have failed, and to date, international competition law still does not exist as such. Instead, competition law is characterised by a proliferation of na-tional regimes forming part of the web of rules, agencies, networks, agreements and institutions, with some shared sense of purpose predicated on the dominance of an economics-approach in this field in relation to private market behaviour. States have entered into enforcement agree-ments and enforcement networks have grown especially since the turn of

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the century, primarily with the aim of improving enforcement through policy learning, technical assistance, and provision of examples of best practice. According to Maher, with this focus on enforcement, there is limited debate as to the nature of competition policy and the question that finds less common purpose – that is, the extent to which States are subject to competition rules. In short, the relationship between competition and regulation is under-developed. The introduction of competition laws in Brazil, India, China and South Africa suggests that this question will be-come more significant in the next decade and beyond, with a re-calibration of the balance between international trade law and internation-al competition law.

In their contribution, Mary Footer and Andrew Forbes draw at-tention to the challenge of China for international trade law. Acknowledg-ing that the continued economic rise of China presents a range of chal-lenges for international trade law, they argue that the only real certainty for the future of China is that its development will continue on a unique trajectory, influenced by ancient Confucian tradition and modern authori-tarian ideology. This, in turn, presents a challenge for the multilateral trading system, as previously it had dealt with a largely ideologically ho-mogenous group of States that take a similar approach to the rule of law.

The authors discuss this changing reality and mention a number of areas where Chinese ideology is already affecting the way in which China in-teracts with the rest of the world. As they expect the coming decades to witness new interpretations of international trade law and new directions in trade governance, Footer and Forbes provide a number of suggestions as to how actors in the multilateral trading system may need to adapt to the changing ideologies in trade, technology, and development that Chi-na’s rise is bringing about. Readers familiar with the first volume of The Law of the Future and the Future of Law will easily recognise many points of resemblance between Footer and Forbes’ think piece and Randal Peerenboom’s think piece from last year’s volume.

Two think pieces in this section – one by Severin de Wit and the other by David S. Levine – provide a critical perspective on intellectual property law and its future. If future thinking about law is generally not quite common, intellectual property law is notably absent from such ex-plorations. Daring to look forward, de Wit discusses challenges in the public and private domains that will shape the future of intellectual prop-erty law. After mentioning current disparaging themes around intellectual

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property (examples mentioned are: market failures; troubled access to medicine; impediments to free flow of information; copyright overexten-sion; digital right protection; overkill and patents stifling rather than stim-ulating innovation), de Wit explores the main drives of such critique and how the law can change so as to restore confidence both in the public as well as in the private domain. He does not expect a major international treaty to solve all difficulties, but rather sees that change will come from domestic law (and case law), local legal initiatives, and common practic-es.

David S. Levine’s think piece is a call for intellectual property law without secrets. In a world where secrecy is on the wane, so he argues, ar-chaic forms of law-making must similarly be reconsidered and discarded.

He posits that international negotiations regarding intellectual property (IP) laws like the Anti-Counterfeiting Trade Agreement (ACTA) and Trans Pacific Partnership Agreement (TPP), and any future international IP law-making procedures, lessen the adherence to a theory of secret ne-gotiations and embrace the inevitable and desirable need for the public to ask questions and offer meaningful input. Whether or not attempting to continue on the current course would be futile, the risk of doing so, Lev-ine warns us, is erosion in the relevance of and confidence in IP law as a legitimate and effective form of regulation. On the other hand, the benefit of adopting a more open and participatory processes will be better, more balanced, and thoughtful law, for all concerned.

The issue of data protection is closely linked to intellectual property and the rise of new communication technologies. Lokke Moerel’s think piece is about data protection and how to best regulate and enforce it.

Bearing some similarity to what was said above regarding competition law and intellectual property law, this provides yet another example for an issue that transcends borders and yet is regulated mostly at the national level (and only in a minority of States). As Moerel puts it, the digital era is characterised by an unprecedented continuous worldwide flow of data both within multinational companies as well as with their external service providers, but while large corporations operate internationally, State gov-ernments legislate nationally. Moerel explains that besides leaving gaps in the patchwork of national data protection regulations, this situation also leads to overlaps in applicable national rules that often deviate or outright conflict. This legal landscape provides a challenging background to test whether transnational private regulation of data protection can provide

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lutions where legislation fails to. Moerel evaluates a remarkable example of the emergence in the EU of a complex hybrid system of self-regulation (global corporate privacy policies) with public arrangements (the data protection authority of the EU headquarters of the multinationals validat-ing such corporate privacy policies and providvalidat-ing support in the area of supervision and enforcement).

Next to international trade and intellectual property, some think pieces focus on the regulation of private actors and corporate social re-sponsibility. Christopher Bovis writes about the regulation of public-private partnerships. He describes such partnerships as complex forms of cooperation between the State and private actors, which exceed the remit of traditional contractual interface, moving into a strategic sphere of pub-lic sector management. Pubpub-lic-Private Partnerships aim at delivering both infrastructure facilities and public services and are regarded as attractive and credible solutions to the infrastructure deficit of many developed and developing States. Bovis’ think piece provides a conceptual forecast of the legal and regulatory mapping of Public-Private Partnerships. Bovis elaborates on the current and future legal trends within which the regula-tion of Public-Private Partnerships will be developed. Furthermore, and in conjunction to the emergence of legal trends, he reflects on societal needs which need calibrating in terms of expectations, but mostly perception, when faced with the modality of Public-Private Partnerships for the deliv-ery of public services. Finally, he provides a conceptual map of the chal-lenges for the development of the law in relation to Public-Private Part-nerships, by depicting their interface as public services instruments, as in-vestment instruments, and as growth instruments. Bovis concludes with recommendations for law and policy makers in relation to the law of the future for Public-Private Partnerships.

Two of the think pieces in this section deal with corporate social re-sponsibility (CSR). Austin Onuoha looks at the relation between legisla-tion and CSR and reflects on some of the areas law could be used in the future to ensure better and more impactful CSR. Focusing in particular on the situation in Nigeria, he examines the tension between the use of na-tional legislation and the application of internana-tional law against the back-ground of the push for soft law by the international community. Onuoha suggests that, whereas the debate around CSR is concerned with voluntary and mandatory initiatives, there are areas where law could in future be used to streamline the practice of CSR, and manage relationships between

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companies and communities. CSR aspects that are discussed in this think piece include community consultation/engagement, FIPC (Free Prior and Informed Consent by communities who own land), criteria for allocation and sharing of funds for CSR initiatives, professionalisation of CSR func-tion, monitoring and evaluafunc-tion, and the streamlining and strengthening of community governance structures. Onuoha concludes with the recom-mendation that in the future, law, on the one hand, and voluntary initia-tives, on the other, should complement each other rather than compete.

According to Martijn Scheltema, a further increase in (internation-al) private regulation in the area of CSR may be expected. He calls for a more profound assessment of the effectiveness of the plethora of private regulation that already exists. Assessing the effectiveness requires an in-tegrated approach involving legal, economic, sociological, and psycholog-ical insights. He argues that additional research is required on hybrid en-forcement systems and on the question in which cases public or private enforcement is effective. Regarding conflict resolution and prevention, he suggests that non-judicial mechanisms seem preferable, though stakehold-ers experience difficulties in finding the proper ones. More research and a global facility are needed to assist stakeholders in this respect. Scheltema further suggests that this trend has implications for the legal profession, and recommends future lawyers in this area to acquire additional skills:

for example, on assessing effectiveness of international private regulation and its enforcement and on non-judicial dispute management mecha-nisms.

S.I. Strong’s think piece does not focus on any particular area of substantive law, rather on a procedural matter which has gained im-portance in recent years: alternative forms of collective redress in the cross border context. Her departure point is that despite the creation of a single global marketplace, most types of legal injuries are compensable only in national courts constrained by territorial boundaries. This is true even in the increasing number of cases involving large-scale injuries in the cross-border context. Rather than resolving the dispute at one time, in one forum, defendants are forced to proceed simultaneously in several dif-ferent jurisdictions, with all the costs and risks associated with parallel lit-igation, while plaintiffs who are similarly situated in all other regards of-ten hold different legal rights and remedies simply by virtue of their place of residence. Strong asserts that this situation seems neither fair nor desir-able. Accordingly, in her think piece she considers whether any

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tives to litigation exist (for example, arbitration and settlement), and whether any of these other options offer a superior means of addressing injuries of this nature.