Towards Algorithmic Trade Policy: A Transatlantic Trade and Investment Partnership in the Era of Computational Law?

Craig Atkinson

Legislation, international agreements, private contracts and standards all refer to rules described in natural languages. With the emergence of computational law – computer-enabled legal analysis, design and automation – jurisdictions are now capable of drafting executable, data-driven, versions of commercial policies in the form of algorithms. Accessible via the internet for the purpose of compliance, algorithmic trade policies can extend the functionality of data and enable legally complete smart contracts between private entities. As trade agreements increasingly include rules on the use of technology and cross-border data transfers, this research project compares the policies of the European Union and the United States that will affect future negotiations toward a ‘born digital’ Transatlantic Trade and Investment Partnership (TTIP). A new iteration of the agreement will necessarily address different existing and envisaged rules, including the General Data Protection Regulation (GDPR), the ‘European Data Strategy’ and internet law. To address the realization of a ‘born digital’ TTIP with computational clauses, the project will compare regulatory gaps and differences in EU and US governance approaches, such as EU rules on natural language ‘right to explanation’ of an algorithm’s function. The research will survey existing sources of EU and US law, academic literature, government reports, international organization recommendations and industry white papers. The project will also consider the role of United Nations Commission on International Trade Law (UNCITRAL) model laws (e.g. electronic transferrable records, e-commerce, e-signature) and the United Nations Convention on Contracts for the International Sale of Goods (CISG); UNIDROIT principles, instruments and model laws; regional frameworks for paperless trade; e-commerce provisions in trade agreements; and, recent digital economy agreements. Emphasizing regulatory differences, project outputs will propose ‘ontology engineering’ methodologies to express bilateral rules. The research is relevant to trade negotiators and policymakers in the digital age.