Abstract
While the importance of cross-border e-commerce and digital trade for global economic recovery after the COVID-19 pandemic is beyond doubt, there are yet to be unified international rules regarding e-commerce and digital trade. The e-commerce and digital trade operating rules of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) are one of the most influential international legislative attempts in the e-commerce and digital trade field. As a leading player in this field, China officially applied to join the CPTPP on 16 September 2021. Dr. Jeanne (Jie) Huang's recent book, China and International E-Commerce and Digital Trade Law: the Case of CPTPP, is a comprehensive study of the e-commerce and digital trade rules under CPTPP, other influential international treaties and domestic laws of China, the United States (‘U.S.’) and the European Union (‘E.U.’).
Dr. Huang's book is a strong contribution to the present literature on international rulemaking in e-commerce and digital trade. Most of the present literature focuses on international treaties per se and analyzes their impacts in certain regions. 1 Dr. Huang not only conducts a thorough comparative analysis between CPTPP, China's Free Trade Agreements, the U.S. Free Trade Agreements, and other international treaties, but also pays significant attention to domestic laws and practices recently adopted and developed in China. For example, her detailed analysis of the Chinese government's innovative mechanism in relation to cross-border e-commerce retail import (CERI) in Chapter 4 of her book marks one of the first academic attempts in this specific field.
One of Dr. Huang's points of view is that while international rulemaking in e-commerce and digital trade is showing a trend towards centralized pluralism, China should abandon the previous practice of using the ‘internalization of international law’ model to push for domestic legal reforms. Instead, China should adopt the ‘externalization of domestic law’ model to lead international rulemaking in e-commerce and digital trade, and eventually becomes one of the centers of pluralistic rulemaking in this field. To reach this conclusion, Dr. Huang sets CPTPP, other influential treaties and FTAs of other countries as references and conducts a detailed and in-depth analysis on the FTAs and domestic laws concluded and adopted by China. In Chapters 2 and 3 of her book, Dr. Huang identifies two sectors of e-commerce and digital trade in China for which further reform is required. Chapter 2 focuses on the rules governing cross-border data flows by comparing the CPTPP, the United States–Mexico–Canada Agreement (USMCA) led by the United States, and the FTAs signed by China. Dr. Huang points out that the existing World Trade Organization (WTO) rules are insufficient to meet the needs of global e-commerce and digital trade due to three major shortcomings, namely its unclear classification of digital products, insufficient protection for consumers and privacy, and weak protection for the free flow of information across borders. Although both China and the U.S. choose to address the three shortcomings with bilateral or (cross-)regional FTAs, China's pace of international rulemaking falls behind the U.S. in three aspects. Firstly, China's FTAs do not distinguish digital products from goods and services, and do not provide national treatment and most-favored-nation treatment to digital products and their suppliers, while the USMCA and CPTPP do. Secondly, although China's domestic laws provide high-standard protection for consumers and privacy, which is similar to the USMCA and CPTPP, the protection provided by China's FTAs in this regard is relatively weak. Thirdly, China's FTAs are clearly lagging behind the USMCA and CPTPP in terms of rules on the free flow of information.
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The recent events of TikTok and WeChat 2 reflect how governments, especially in the western world, address data security issues by imposing sanctions and enacting strong protective domestic laws. 3 In light of this, another value of Dr. Huang's book is that she pays substantial attention to the cross-border dispute resolution in relation to the e-commerce and digital trade issues.
From the perspectives of jurisdiction and choice-of-law, Chapter 5 focuses on Chinese private international law rules concerning e-commerce and digital trade. Unlike the U.S., the E.U. and Australia, China recognizes the jurisdiction of a court where the server is located, but the target and the interactive level are not recognized in China as factors rendering a court's jurisdiction. In terms of choice-of-law rules, Dr. Huang identifies three trends, namely the diversification of personal information protection laws, the widespread application of lex fori, and ‘de-Americanization’ of choice-of-law rules.
Dr. Huang's book presents an innovative view that China has the potential to influence and even lead the international rulemaking of the fast-changing field of e-commerce and digital trade. In reaching this conclusion, Dr. Huang provides a comprehensive analysis of the innovative laws and practices adopted and developed by China. However, Dr. Huang seems ignorant on how Chinese government is distrusted by other international players, especially the U.S., and how the issue of national security is raised in the western world concerning the data stored and processed in China. 4 A detailed analysis on the drawbacks of the Chinese laws concerning data and national security, followed by suggestions on how Chinese government would rebuild the trust in the western world, may further enhance the comprehensiveness of Dr Huang's book. Nevertheless, Dr. Huang's book is still a strong contribution to the present literature and strongly recommended for those interested in international rulemaking in the e-commerce and digital trade field.