Polycentric Future: Joint Rule-making in E-commerce by Public and Private Bodies in Post-TPP Era

Author
Dr. Jie (Jeanne) Huang (Senior Lecturer, UNSW Law)

In a few industries, privately-owned Chinese enterprises have actively advocated their voice in international rule-making. E-commerce is one example. Jack Ma, Alibaba Group Executive Chairman and United Nations Assistant Secretary-General, is calling for the establishment of an Electronic World Trade Platform (‘eWTP’) to help small to medium-sized enterprises (‘SMEs’), developing countries and young people to enter the global market and join the global economy. eWTP would link local, regional, national and international e-commerce Internet platforms. It facilitates SMEs compliance with various government regulations on products, customs procedures and provides better access to logistics and financing. According to Jack Ma, the eWTP is a logical and natural complement to the WTO but it is driven by businesses with support from governments. Jack Ma has vigorously advocated for eWTP in Business 20 SME Development Taskforce, the G20 and Boao Forum for Asia Annual Conference 2016. The eWTP has been included in the G20 Leaders’ Communiqué published after the 2016 Hangzhou Summit. Currently, the eWTP initiative lacks details so it is difficult to predict its potential. Nevertheless, e-commerce rules proposed by Chinese enterprises may possibly be commercially-oriented. The rules will protect consumer and privacy but will not touch upon free flow of information which may have human rights connotations. A similar approach seems to be adopted by Facebook. According to the New York Times, in 2016, Facebook quietly built software to censor news feeds in specific geographic areas to prepare the company for entry into China. In a polycentric system, private entities develop informal law that impacts the development of international trade law for digital products. China is one of the largest and most lucrative markets for all e-commerce companies. Private entities are profit-making and may be publicly held. The market power may allow them to promote free flow of information while carving out human rights implications.

Excerpt (without footnotes) from Jie (Jeanne) Huang, Comparison of E-commerce Regulations in Chinese and American FTAs: Converging Approaches, Diverging Contents, and Polycentric Directions?, Netherlands International Law Review (August 2017) at https://link.springer.com/article/10.1007/s40802-017-0094-1