In The Electronic Silk Road: How the Web Binds the World Together in Commerce, Anupam Chander has helped to illuminate any number of debates that surround the growing trade in online information services (a phenomenon that he calls “net-work”). The range of legal and political issues implicated by trade in online information services is vast and some are quite arcane. Yet, Chander brings them together beautifully in a wonderfully accessible book that is very readable without being simplistic. He does not purport to offer a single solution to the challenges of trade in online information services. (Indeed, I would be suspicious of anyone hawking a single solution to what is an incredibly complex problem.) Instead, he suggests a framework for recalibrating the balance between local and international norms (and institutions) in ways that take account of the special features of online commerce (and online social interactions, for Chander is continually alert to the ways that trade and commerce can positively contribute to broader social policy objectives). Chander recognises that to understand the complexity of regulating (or de-regulating) the provision of online services, one has to take account of any number of institutions or devices: thus he dissects rules on conflicts of law (jurisdiction, choice of law, and recognition and enforcement of judgments), and international economic law (most notably GATS), while also taking due account of private ordering by large online players and the global power of consumer pressure. He paints a messy picture, but it is messy because it is rich. One has first to accept that messiness and complexity, in order to address the problems of activity that (arguably) simultaneously occurs nowhere and everywhere.
Perhaps the biggest single contribution that Chander makes is to suggest that these disparate legal devices can be considered through a single analytical framework, which he develops using a number of core propositions and concepts. The most important of these, which I discuss below, is the concept of “glocalisation” (not new, but adopted and adapted by Chander) and harmonisation (also not new, of course). The framework does not suggest any concrete solutions (with a couple of exceptions). But that would be too much to expect. Nor will it resolve some of the most acute tensions between international norms and local (national) sovereignty. But that would be too much to ask. It does ask us to think differently about how to address those tensions.
It is the interaction of glocalisation and harmonisation that is at the heart of the book, and on which I will focus my post. The core proposition that Chander advances is “Harmonise where possible, and glocalize where necessary.” (p 191). By this proposition, I read (based on his uses throughout the book rather than how I would use the terms, as discussed below) to mean that we should strive for global norms so as to take advantage of the efficiencies (and other social benefits) of universalization, but allow local (mostly national) norms to apply where important to preserve important values on which local communities may disagree (provided such values are broadly consistent with fundamental international norms, such as human rights commitments). In some respects, this is not a radical proposition. Most of international law consists of calibrating the balance between the national sovereignty and international norms.
However, in two senses Chander’s proposal is quite radical.First, he recognises this tension pervades any number of legal rules and institutions, not just public international law. Thus, he seeks to apply his basic tenet to conflicts rules, as well as rules that facilitate global transactions. This is radical insofar as it is not the starting point for conventional private law analysis generally. Chander is not alone.