International Trade Lawmaking @ Beijing Normal University

On 24 October 2020, 09:00 to 11:00 CET, Prof. Xue was invited to give a guest virtual lecture for the Master Students of Artificial Intelligence at the European University of Rome through Microsoft Teams. More than 60 Master-degree students participated in the Lecture and raised many interesting questions.

Prof. Xue began the lecture with the brief introduction to a variety of national or regional AI strategies coming into being around 2017 and 2018. Although East Asia countries are the most active group for developing the strategic plans, the other leading economies like Singapore, US and EU are not left behind. European Commission has published its people-centered principles for AI application and taken the negative social effects (such as unemployment) into account.

Chinese National Plan, issued by the State Council in 2017 and supported by a few implementation documents, highlighted the 3-step of development and a list of strategic products and areas. According to Prof. Xue’s research, the strategy emphasizes the public investments, market competition and balanced development between the advanced and traditional businesses. Among other things, the Strategy outlines the need of establishing the legal and ethical framework for AI, particularly on the liability and security issues.

Prof. Xue gave an in-depth analysis on the critical legal issues in the international trade law, tort law and IP laws. When the international trading process has been increasingly completed through AI, the legal risk of losing control is real. AI also has the great potential in the application in paperless trade, trade security measures (such as eID management and trust services involving e-seals, timestamp, etc.) and security assessment for data outflow.

Tort law are being challenges with respect to all the critical elements, including malfeasance, fault and liability, once AI comes into play. The traditional liability regime that is based on the human’s free will and choices is not working well in the context of AI above Level 3 (which is more than assistance to human but tending to take control). Prof. Xue suggests that the compulsory insurance may be an alternative to the liability especially in the case of driver-less automobiles, drones and domestic service robots.

With respect to intellectual creations, the criteria in Patent Law and Copyright Law can still be applicable. The problem lies in ownership. Would it become belittling both human and AI to treat the creations as “co-authored” or works for hire? When humans are benefiting from the AI creations, they might not be ready to be liable for the potential infringement risks caused by AI.

Prof. Xue’s lecture was warmed welcomed by the students and opened a new interdisciplinary dialogue across Euro-Asia continent.

UNESCAP 8th Meeting of the Legal and Technical Working Groups on Cross-border Paperless Trade Facilitation was held on 14 OCT 2020 TO 16 OCT 2020 virtually. Prof. Xue took part in the meetings and presented the views on the legal issues in the implementation of the Framework Agreement on Facilitation of Cross-Border Paperless Trade in Asia and the Pacific.

The Framework Agreement on Facilitation of Cross-border Paperless Trade in Asia and the Pacific, a UN treaty deposited with the Secretary General of the United Nations in New York, was adopted by the Economic and Social Commission for Asia and the Pacific in May 2016.

The Framework Agreement aims at accelerating the implementation of digital trade facilitation measures for trade and development. Designed as an inclusive instrument accessible to countries at all levels of development to develop their capacity to engage in cross-border paperless trade, the final treaty text Trade cost reductions expected from full implementation of cross-border paperless trade are estimated at 10-30% of existing transactions costs, depending on the current state of paperless trade development in the participating countries. Significant benefits in terms of trade compliance are also expected.

Five ESCAP member states (Armenia, Bangladesh, Cambodia, China and Islamic Republic of Iran) formally signed the Framework Agreement in 2017. Azerbaijan acceded to the Framework Agreement in March 2018 and the Philippines acceded in December 2019. Islamic Republic of Iran ratified the Framework Agreement in May 2020 and Bangladesh ratified in October 2020. China is expected to ratify the Framework Agreement very soon and will become the fifth member state that effectuates the Agreement.

Prof. Xue primarily addressed the legal issues of cross-border data transfer and related security enforcement in the process of cross-border paperless trade. China has recently enacted the Export Control Law and prevents the goods, services and technologies (including source codes and algorithms) that endanger national security interests from being exported. The legal mechanism is developed from the technology import & export regulation, which largely divides the technologies into 3 types for the purpose of imports and exports. However, the Cybersecurity Law brings the data outflow into the play (Art. 37). The different legal mechanisms need harmonization and integration to avoid complicating the legal enforcement.

There are many questions left unanswered. Is the technology free for exports subject to the security assessment for data outflow? Are the traders of cross-border paperless trade CII operators? In addition to transaction and logistic documents, are the payment and property certificates (e.g. BLs) the financial data that is within the meaning of “important data “? Are the COs, customs declaration and many other authority sanctions the public service data? Does the data in the IoT, Blockchain and cloud computing outflow and should be subject to security assessment? Should the principle of non-discrimination be applied because the paper-based documents are subject to the same requirements? So many legal uncertainties may become the barriers for the implementation of the Framework Agreement. The concerns were strongly agreed by the other experts at the meetings.