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Volume 44 - Issue 1


China Data Flows and Power in the Era of Chinese Big Tech

Voss, W. Gregory,Pernot-Leplay, Emmanuel | January 1, 2024

Personal data have great economic interest today and their possession and control are the object of geopolitics, leading to their regulation by means that vary dependent on the strategic objectives of the jurisdiction considered. This study fills a gap in the literature in this area by analyzing holistically the regulation of personal data flows both into and from China, the world’s second largest economy. In doing so, it focuses on laws and regulations of three major power blocs: the United States, the European Union, and China, seen within the framework of geopolitics, and considering the rise of Chinese big tech. First, this study analyzes ways that the United States—the champion of the free-flow of data that has helped feed the success of the Silicon Valley system—has in specific cases prevented data flows to China on grounds of individual data protection and national security. The danger of this approach and alternate protection through potential U.S. federal data privacy legislation are evoked. Second, the cross-border data flow restriction of the European Union’s General Data Protection Regulation (GDPR) is studied in the context of data exports to China, including where the data transit via the United States prior to their transfer to China. Next, after review of the conditions for a European Commission adequacy determination and an examination of recent data privacy legislation in China, the authors provide a preliminary negative assessment of the potential for such a determination for China, where government access is an important part of the picture. Difficult points are highlighted for investigation by data exporters to China, when relying on EU transfer mechanisms, following the Schrems II jurisprudence. Finally, recent Chinese regulations establishing requirements for the export of data are studied. In this exercise, light is shed on compliance requirements for companies under Chinese law, provisions of Chinese data transfer regulations that are similar to the those of the GDPR, and aspects that show China’s own approach to restrictions on data transfers, such as an emphasis on national security protection. This study concludes with the observation that restrictions for data flows both into and out of China will continue and potentially be amplified, and economic actors will need to prepare themselves to navigate the relevant regulations examined in this study.

ESG, Geopolitics, and Human Rights in Disputed Territories

Rivlin, Galia | January 1, 2024

Business enterprises operating in the international sphere face pressing and persistent questions concerning their environmental, social, and governance responsibilities. As the number of disputes escalates worldwide, such questions become more acute. In addition to any voluntary social responsibilities business enterprises may have, a complex legal framework governs business activity in the context of human rights. This framework was designed to address governance shortfalls pertaining to transnational corporations. Business enterprises thus operate nowadays in a web of social standards and legal human rights responsibilities. The human rights responsibilities of business enterprises may be initially associated with forced labor or child labor cases; however, when it comes to disputed territories, other types of rights and considerations come into play that are closely connected to the dispute itself. In the context of disputed territories, especially occupied territories, two distinct questions arise: (1) whether the very presence of business enterprises in such territories is problematic in and of itself; and (2) whether business enterprises operating in disputed territories should be subject to the same human rights framework that applies to businesses operating elsewhere. This article unfolds a comprehensive analysis of these fundamental questions and the complexities they present. It thereby uncovers a number of novel yet pragmatic insights that pave the way toward alleviating the tension among geopolitics, corporate social responsibility, corporate governance, and international law.


The (in)Efficacy of Multilateral Corruption Laws: Why the United States Should Endorse the International Anti-Corruption Court

Cates, Peter | January 1, 2024

Public corruption, the abuse of state power for personal gain, plagues the international community by undermining democracy, exacerbating human rights issues, and stymying economic development. To combat this threat, the international community has taken on multiple treaties to collaboratively curb corruption and its effects including, significantly, the United Nations Convention Against Corruption and the OECD Anti-Bribery Convention. For its part, the United States prosecutes international corruption through the Foreign Corrupt Practices Act (FCPA). The FCPA subjects U.S. companies who engage in bribery schemes (the “supply-side” of corruption) to criminal and civil penalties regardless of whether the actions took place outside of the borders of the United States. This broad jurisdiction, however, does not extend to the foreign corrupt officials (the “demand-side” of corruption) outside of the jurisdiction of U.S. laws. Although the FCPA is meant to be just one lever of the broader international anti-corruption mechanisms, the OECD Anti-Bribery convention identifies the United States as one of only two active enforcers of the treaty’s standards. In international commercial markets, kleptocrats have created a sort of corruption marketplace in which these corrupt officials offer advantages like valuable government contracts or workarounds to regulations in exchange for bribes. Since the United States is one of the only countries in the world to enforce anti-corruption standards, American companies face higher consequences for engaging in this corrupt marketplace under the FCPA than their foreign peers, placing them at a competitive disadvantage. Because corruption is such a negative force on the world, the solution cannot be to make the U.S. laws less stringent. Instead, this Note seeks a solution that brings more countries into the fight against corruption, centered on the values of cooperation, accountability, and practicability. And, vitally, it seeks a solution that goes after the demand-side of corruption. This Note endorses the International Anti-Corruption Court (IACC). First proposed by former federal U.S. Judge Mark Wolf in 2013, the IACC has steadily gained momentum in the last few years, including an endorsement by the European Parliament in 2023, which indicates the increasingly realistic probability of the court materializing. Notably, the United States is absent among the supporters. Aside from the humanitarian and economic benefits, an IACC would also create a more equitable international commercial market in which American companies are currently disadvantaged. The IACC also provides an avenue to prosecute the demand-side of corruption and root out powerful kleptocrats abusing their offices, which would break down the corruption marketplace. President Biden has made combatting public corruption a core policy interest of his administration’s objectives; the IACC satisfies the goals of this initiative and would produce meaningful value to American companies and people. For all of those reasons, the United States should endorse and ultimately participate in the IACC.