Day: February 12, 2022

Chander on Artificial Intelligence and Trade

Anupam Chander (Georgetown University Law Center) has posted “Artificial Intelligence and Trade”
(in Big Data and Global Trade Law 115-127 (Mira Burri ed., Cambridge: Cambridge University Press 2021)) on SSRN. Here is the abstract:

Artificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals how the WTO agreements leave room for governments to insist on locally responsible AI, while at the same time promoting international trade powered by AI.

Di Porto et al. on A Computational Analysis of the Debate on Informational Duties in the Digital Services and the Digital Markets Acts

Fabiana Di Porto (University of Salento ; LUISS; Hebrew University) et al. have posted “Talking at Cross Purposes? A Computational Analysis of the Debate on Informational Duties in the Digital Services and the Digital Markets Acts” on SSRN. Here is the abstract:

In the latest Commission proposals, the Digital Markets Act (DMA) and Digital Services Act (DSA), ex ante informational obligations for online intermediaries, platforms, and ‘gatekeepers’ figure prominently. Some are new, others are already state-of-the-art for many operators. Because the efficacy of these duties is widely questioned, one wonders how they are implemented in the normative proposals. The question is largely uncovered in the literature. To fill this void, the paper investigates whether there was any agreement among the stakeholders who participated in the consultation over the DSA and DMA proposals. We do so by using NLP techniques to analyze whether key terms of transparency are used in the same way by different stakeholders. We find significant differences in the employment of terms like ‘simple’ or ‘meaningful’ in the position papers that informed the drafting of the two proposals. These findings are informative for both rule-makers and legal scholars, and may explain why informational duties fail so often to reach their goal.

Recommended.

Orbach on Mandated Neutrality, Platforms, and Ecosystems

Barak Orbach (University of Arizona) has posted “Mandated Neutrality, Platforms, and Ecosystems” (Pinar Akman et al., Research Handbook on Abuse of Dominance and Monopolization (Edward Elgar, forthcoming 2022)) on SSRN. Here is the abstract:

This chapter explores and assesses the conceptual foundations of mandated neutrality standards (MNS) prescriptions, such as ‘platform neutrality’ and bans on ‘self-preferencing’. MNS prescriptions require dominant digital intermediaries to deal with all interested parties on fair and equal terms. Specifically, MNS prescriptions require dominant digital ecosystems to treat rivals as they treat their own subsidiaries and units, and treat all trade partners alike, regardless of the attributes of the trade relations. Extreme forms of MNS prescriptions seek to break up digital ecosystems and outlaw business models that integrate platforms and other lines of business. The stated rationale of MNS prescriptions is that antitrust enforcement must preserve fairness in the marketplace. Inquiries into the intellectual foundations of MNS prescriptions, however, tend to frustrate serious antitrust thinkers. They conflate basic concepts, such as ‘fairness’ and ‘competition’, and ‘opportunism’ and ‘anticompetitive conduct’. They perceive low prices, convenience, and efficiencies as predatory tactics, and fail to articulate practical neutrality standards.

Schmitz & Martinez on ODR in the United States

Amy J. Schmitz (Ohio State University Moritz College of Law) and Janet Martinez (Stanford Law School) have posted “ODR and Innovation in the United States” (in ONLINE DISPUTE RESOLUTION: THEORY AND PRACTICE: A TREATISE ON TECHNOLOGY AND DISPUTE RESOLUTION (Wahab, Katsh and Eds., 2021)) on SSRN. Here is the abstract:

Technology is revolutionizing the Alternative Dispute Resolution (ADR) field, especially in the wake of Covid-19. Despite the long-held assumptions that increasing understanding, building empathy, and crafting resolution are only possible in-person, effective ways have emerged for assisting the resolution of the exploding number of disputes that have burgeoned online. Technology has become the “fourth party” through the growing field of online dispute resolution (ODR), which includes use of technology and computer-mediated-communication (CMC) in negotiation, mediation, arbitration and other dispute resolution processes. ODR is infiltrating every area of dispute resolution, from courts (small claims, tax, landlord/tenant, family and more) to the block chain. Furthermore, innovation in the field continues to grow, as institutionalization expands in the U.S. legal tech market. Nonetheless, it is questionable whether this expansion has sufficiently considered sound and ethical dispute system design. This chapter in a new Treatise on ODR explores ODR’s recent development in the U.S., analyzes the providers that self-identified as providing “ODR” to the National Center for Technology and Dispute Resolution (NCTDR) in the U.S., and proposes closer attention to dispute system design. Moreover, the chapter invites further innovation and research in the ODR to advance access to justice.