To read the recommendations as published by the OECD, please click here.

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Artificial Intelligence (AI) is emerging as a significant phenomenon in the global economy. As multinational corporations pour capital into acquiring AI start-ups, investment in cognitive AI systems is expected to reach USD 98 billion by 2023. The United States and China have established initiatives to pursue strategic dominance of AI, while several other developed countries are nurturing their own AI sectors. Such is the promise of creative destruction associated with AI that the concept of privacy, the nature of work, the accountability of governments, and the value of data must all be reviewed in response to AI-driven technological advancements. Indeed, concerns about the ensuing public interest implications have provoked a series of responses by national legislatures as States attempt to fill the regulatory vacuum.

While international economic law literature is becoming increasingly cognisant of AI, the interaction between AI and investment treaties remains uncharted territory. Scholars have addressed how AI will exacerbate the ‘digital divide’ within cross-border trade, contribute to data-driven research within international economic law, and even generate treaties to predict the outcome of negotiations. Broader issues of international arbitration have similarly been scrutinized within the context of AI, for predicting outcomes, selecting arbitrators, and calculating damages. In contrast, AI’s interaction with investment treaties has garnered little attention, and is the focus of this article.

The central thesis is that the international investment regime provides an unpredictable legal environment in which to adjudicate the emerging norms and ethics of AI. Reforms to drafting and to practice are necessary to prepare investment treaties for an AI-driven future.

This article proceeds in five Sections. Section 2 considers the components and regulation of AI. It is argued that AI regulation – including limitations on market access, utilization of automated decision-making systems, restrictions on cross-border data flows, and mandated algorithmic transparency – may constitute barriers to investment. Section 3 discusses the conditions for AI to be within the scope of protected investment in international investment agreements (IIAs). Section 4 analyses whether measures targeting AI are in compliance with substantive investment obligations. Having identified areas of potential breach, Section 5 finds that existing exceptions clauses within IIAs are too narrowly drafted to encompass the relevant policy concerns. As a result, Section 6 proposes three reformative measures to optimize investment treaties for the AI-powered investor and AI-powered host State.

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The use of artificial intelligence (AI) is expanding rapidly. These technological breakthroughs present both opportunity and potential peril. AI technology offers great hope for increasing economic opportunity, boosting incomes, speeding life science research at reduced costs, and simplifying the lives of consumers. With so much potential for innovation, organizations investing in AI-oriented practices are already ramping up initiatives that boost productivity to remain competitive.

Like most disruptive technologies, these investments can both create and displace jobs. If appropriate and reasonable protections are not put in place, AI could adversely affect privacy and personal liberties or promote bias. Policymakers must debate and resolve the questions emanating from these opportunities and concerns to ensure that AI is used responsibly and ethically.

This debate must answer several core questions: What is the government’s role in promoting the kinds of innovation that allow for learning and adaptation while leveraging core strengths of the American economy in innovation and product development? How might policymakers balance competing interests associated with AI—those of economic, societal, and quality-of-life improvements—against privacy concerns, workforce disruption, and built-in-biases associated with algorithmic decision-making? And how can Washington establish a policy and regulatory environment that will help ensure continued U.S. global AI leadership while navigating its own course between increasing regulations from Europe and competition from China’s broad-based adoption of AI?

To read the full summary as it was published by the U.S. Chamber of Commerce, click here.

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Yet no one knows how to build or sustain trust in the face of rapid data-driven change. Online ‘trust must be negotiated with others whom users do not see, with faraway enterprises, under circumstances that are not wholly familiar, in a world exploding with information of uncertain provenance’. 

Since the onset of the global pandemic, individuals, companies, and governments have become increasingly dependent upon the internet and data-driven services to work, learn, and socialize. These new services helped sustain the global economy and allowed many to connect, work, study, and prosper online through lockdowns. Yet because many of these services are built on the collection, analysis, and monetization of personal data, they also threaten our autonomy, individual rights, and systems of governance. The US National Intelligence Council has issued a stark warning that: 

privacy and anonymity may effectively disappear by choice or government mandate, as all aspects of personal and professional lives are tracked by global networks. Moreover, real-time, manufactured, or synthetic media could further distort truth and reality, destabilizing societies at a scale and speed that dwarfs current disinformation challenges. 

These concerns about online security are reflected in surveys of users. In 2019, the Pew Foundation found that many people are afraid that their bodog sportsbook review data are used without their consent, and concerned that firms use their clients’ personal data to discriminate and manipulate them. Likewise, CIGI and IPSOS suggested 75 per cent of 25,000 users polled cited Facebook, Twitter, and other social media platforms as contributing to their lack of trust. In the same survey, 78 per cent of respondents were concerned about their online privacy, with over half more concerned than they were a year ago. Similar concerns are seen in data collected by the Oxford Internet Institute in 2020 which showed that for those active online, around half are concerned about disinformation and 71 per cent of internet users are worried about a mixture of online threats, including disinformation, fraud, malware, spyware, and harassment. 

Given this situation, in 2019 Prime Minister Shinzo Abe of Japan decided that he could both reinvigorate negotiations over cross-border data flows at the World Trade Organization (WTO) and build trust in policy-makers’ efforts to govern data. Policy-makers have been trying to negotiate such rules since the first e-commerce agreement (Australia/Singapore) in 2003. Abe stated that he wanted the Osaka meeting of the Group of 20 nations (the G-20) ‘to be long remembered as the summit that started world-wide data governance… under the roof of the WTO’. He noted that data-driven services are built on data collected from individuals in one country and often stored or analysed in another. Such cross-border flows underpin both the internet and the global economy. Hence, data free flow with trust meant that countries would allow medical, industrial, and other nonpersonal data to freely flow across borders, but ‘put our personal data and data embodying intellectual property, national security intelligence, and so on, under careful protection’. 

However, although Abe argued that certain types of data needed special rules to facilitate trust, he never explained what these rules should look like and how nations might find an internationally accepted approach to such rules. Despite the lack of clarity, other international organizations have underscored the concept that data will not flow freely without trust, including the G-20, the OECD,3,5 the World Economic Forum, and most recently the G-7. Despite this consensus on the need to link free flow and trust, the trade regime is not the only or best venue to discuss this issue. Policy-makers discuss trust and data flows at other venues including the UN and the OECD. But trade agreements are binding and generally disputable. Moreover, digital trade agreements generally include language making the free flow of data a default, with certain exceptions. These agreements also address measures that can distort the free flow of data, such as spam. 

This author is deeply ambivalent about this focus on trade agreements as a tool to govern data. First, although data are constantly exchanged between entities in different countries, such exchange is not always accompanied by a transaction and may not be ‘traded’. Moreover, data are multidimensional—they are not just a commercial asset but a public good and a national security problem. Policy-makers have not figured out how to encourage data sharing and the broad use of data to address wicked problems that transcend nations and borders, such as climate change. Finally, much of the data flowing across borders are aggregated and allegedly anonymized personal data. While users may benefit from services built on data, the people who are the sources of those data do not control them. The data are their assets, yet they cannot manage, control, exchange or account for them. Individuals’ data can essentially be weaponized to create malicious cross-border data flows, whether through disinformation, malware, spam, or other means. Nonetheless, trade agreements are vehicles to build trust because they are commitment devices. They build trust by clarifying how and when nations can trade and how and when they can violate trade rules. 

Policy-makers are eager to build trust in how they govern data. But the process of negotiating trade agreements (which is secretive) could be problematic to engendering trust. Some believe that trade negotiations allow policymakers to deliver on behalf of special interests such as large digital platforms, rather than the broad public Others argue that because the process is secretive, policy-makers can avoid catering to national special interests. Hence, how policy-makers respond to what their citizens say they need or are concerned about is as important as what (the specific rules) when designing rules and institutions of governance. 

This paper focuses on both what policy-makers include in trade agreements and how they include these provisions. I focus on three concerns impeding trust online: internet shutdowns and censorship, disinformation, and ransomware (a form of malware). I will show that these problems are increasingly visible, and trade distorting. Moreover, all three may undermine trust, which could lead consumers and firms to be more cautious in their online operations. Over time, that could reduce market growth for users and providers of data-driven services.

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The interim report reviewed the evolution of the U.S.-China relationship and identified six distinct areas that motivated U.S.-China engagement from 1972 through the end of the Trump administration: (1) geostrategy; (2) economics; (3) human rights and civil society; (4) global rules and norms; (5) global public goods; and (6) technology and innovation. This final report presents a framework for assessing specific economic activities as candidates for targeted decoupling, along with findings from three illustrative case studies designed to test it: artificial intelligence, biotechnology, and financial flows. The hope is that such a framework, which forces the identification of risks as well as U.S. objectives, can boost transparency and predictability, lessen regulatory uncertainty, and support engagement between the United States and China in areas that do not unacceptably compromise U.S. national security.

To read the full report from the Center for Strategic & International Studies, please click here.

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To be clear, we recognize the political difficulty of creating any new agency, given committee conflicts, a view that such reorganization is difficult, and resistance by some to larger government. But doing so is critical. NSF and the academic science community play a key role in the advancement of basic science, but that is different than supporting technological innovation and value capture in the United States. While the Department of Defense (DOD) plays a key role in technology development, its focus will always be on defense needs. The Department of Energy (DOE) is either focused on basic science or energy technology. What the United States lacks and desperately needs is a free-standing federal entity whose sole mission is supporting advanced technology industry development in order to help America compete.

Such an agency should take the lead in crafting and regularly revising a national advanced industry and technology strategy (AITS). It should coordinate, along with the White House, an interagency process to help align federal, state, and international (allied nation) policies and programs with the goal of U.S. advanced industry competitiveness. And it should be the one place in government that funds activities explicitly focused on commercial competitiveness.

To read the full report from the Information Technology and Innovation Foundation, please click here.

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The past decades have been characterized by a strong expansion of global production networks: driven by falling transportation, communication, and coordination costs, production has become increasingly fragmented internationally. In 1970, approximately 37% of the world’s total exports contained inputs that had been imported before. This share rose to over 50% in 2008 and has remained relatively stable since then, according to the World Development Report 2020 (World Bank, 2020).

These GVCs, like all trading activities, have created winners and losers. On the one hand, specialized firms and their workers (often also in emerging and developing countries) have been able to participate in global production networks and have benefited from investment and knowledge transfer. On the other hand, firms and workers who previously carried out these activities (mostly in developed countries) have had to cope with labour market adjustments such as lower wages or even unemployment spells as production activities moved elsewhere. Consumers, for their part, have generally benefitted from lower prices and larger variety.

Increasing the scope for automation

With the recent digital transformations there is growing potential to further automate production. While automation is not a new phenomenon, the digital transformation —with innovations such as the Internet of Things or advanced manufacturing techniques including 3D printing— makes it possible to link production stages by a digital thread. This will allow for smaller, if not individual, batches in production: mass customization rather than mass production.

How will automation impact the global division of labour? One of the major reasons for building up GVCs was saving in labour costs. Automation means that machines (robots) can substitute labour at a lower cost, so it is possible that automation eradicates the comparative advantage of low-wage countries, leads to reshoring of production, and hence shortens GVCs. Furthermore, the possibilities of enhanced customization may also move production closer to consumers.

The evidence for reshoring is unclear. In an analysis examining international operations of US firms, “no evidence of a widespread reshoring trend” was found. However, something is going on: an ILO analysis on the global use of robots found that, between 2005 and 2015, there was a negative impact of robot usage on worldwide employment. This is mainly the case across emerging economies rather than developing ones. Furthermore, the use of robots in developed countries decreases offshoring. This evidence suggests that, while production may not have shifted back to developed economies (reshoring), machines have nevertheless been a substitute for labour.

Automation of labour-intensive production tasks in GVCs becomes critical if countries are highly dependent on exports within a specific industry. The fast-paced retail industry is a good example of this. Retail exports account for over two-thirds of total exports in countries such as Bangladesh or Cambodia, where sewing tasks are carried out. Even though the automation potential for sewing tasks is currently limited, the countries may be hit hard once technological innovations compete with their comparative advantage in sewing. 

The growing role of services in GVCs

The proliferation of global production networks would not have been possible without a range of services: telecommunication, transportation, financial, etc. Thus, services have always been an important part of GVCs. Yet, during the past decades, trade in services has grown significantly more rapidly than trade in goods, as can be seen in Balance of Payments statistics. Figure 1 shows that trade in services that can potentially be digitally delivered has grown significantly stronger than services that can only be physically delivered (such as tourism or construction). Due to the digital transformation, an increasing number of services can also be easily traded digitally, while the production of services has increasingly become internationally fragmented, e.g. when tax returns are prepared in one country and finalized in another.

The digital transformation has also spilled over onto the manufacturing industry, e.g. when goods are bundled with insurances or repair services, with financial services, or with subscriptions to a regular delivery of supplies. In fact, for many manufactured goods the services are central to product differentiation. Thus, the line between goods and services becomes increasingly blurred.

How does this impact the global division of labour? With the emergence of digital platforms everyone can offer a service and every company can essentially source its service inputs from anywhere around the globe. This has enabled specialized suppliers, especially small- and medium-sized enterprises (SMEs), to become part of GVCs – both upstream and downstream. For example, digitally connected SMEs tend to import a higher share of their production inputs, because they can find – and be found by – specialized suppliers worldwide. At the same time, this “globalization of the labour market” drives competition among local workers and suppliers, which must be addressed by flexible skill upgrading and innovation.

Geoeconomic implications

Overall, it is clear that the digital transformation will continue to expand production possibilities, change GVCs and, thus, have geoeconomic implications. On the one hand, the digital transformation will support and perhaps enhance GVCs, as it provides better ways to control supplier relationships, it offers new possibilities for GVC participation, and it enables new products blending goods with services. Countries with a better digital infrastructure and an adequately skilled workforce are likely to have a competitive advantage and capture higher shares of value added in this world. At the same time, these developments will promote a concentration of power in firms and countries that control the underlying platforms. The geopolitical battle for dominance in the platform economy is already ongoing, for example when Chinese suppliers are banned from public tenders.

On the other hand, the digital transformation bodog poker review increases the scope for automation and customized production. Countries abundant in low-skilled labour are likely to lose their comparative advantage, as the size of the home market becomes more important than labour costs in choosing production locations. At the same time, digitalization may also enable countries to leapfrog development: while it was previously important to have an industrial base to participate in GVCs, digital infrastructure or innovative SMEs may now be more important factors. 

Figure 1 – Growth in services trade by mode of delivery, EU-28, 2010-2018, in %

Source: OECD (2019) – Trade in services – EBOPS 2010, trade in services by partner economy; classification of digitally-deliverable services based on UNCTAD (2015). The following services are classified as digitally deliverable: insurance and pension services; financial services; charges for the use of intellectual property; telecommunications, computer and information services; other business services; and audio-visual and related services.

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