Analysis

Kenya should consider the impact of strict data localization measures on digital trade. Kenya should also sign and ratify the Malabo convention before requiring other countries to do so as a means of meeting the adequacy requirement its data protection regulations proposes. This action will signify Kenya’s commitment to intra-African partnership and will enhance cooperation in the continent. In addition, Kenya should consider concluding reciprocal (bilateral) data protection agreements with specific countries to promote trade as it settles its broader international and regional treaty framework position.

The unrestricted movement of data is a key enabler of the digital economy. However, the development of data protection and data localisation policies is becoming one major area of concern for international trade and investment. Among the mechanisms for protecting individuals is data localisation. This requires that data or a copy thereof (both personal and non-personal) should only be stored and processed locally and should not be exported for processing. The import of this, for instance, is that all data generated within Nigeria must be confined to the boundaries of Nigeria, effectively restricting the flow of data. While localisation of data has significant economic and social benefits, it is also associated with several unintended (negative) consequences, especially from an economic perspective. This is especially true for developing countries like Nigeria that is moving towards greater data localisation with several policies skewed in that direction. This contribution briefly examines the implications of Nigeria’s increasing move towards data localisation on its regional obligations for the promotion of free trade in Africa.

A holistic and collaborative approach to data protection and inclusive economic growth is capable of spurring sustainable development, and reducing new patterns of inequalities occurring within South Africa and between South Africa and other nations in the context of the digital economy.

Rules on cross-border data flows are no exception to this general trend. Moreover, given that the WTO rulebook was mostly written in the 1990s prior to the rise of the data driven economy, multilateral trade rules by and large do not regulate cross-border data flows, a fact which has contributed to rules on this front – demand for which has only increased as economies have become more data intensive – being set nationally and even sub-nationally, but also regionally, and in PTAs and FTAs. At the same time, trends such as the rise of what is often referred to as ‘surveillance capitalism’ has brought the issue of personal data protection on privacy grounds into sharper focus around the world. With this background context in place, this essay looks at the intersection of economic integration and personal data protection with a view to informing ongoing debates on what AfCFTA rules on cross-border data flows might look like.

The limit of cross border flow of personal data is broadly referred to as data localisation and is often justified based on five main concerns. These include the protection of personal data, access to data by local law enforcement, ensuring national security, advancing local economic competitiveness and levelling the regulatory playing field. However, a closer look at these justifications reveal the impact of data localisation on free trade, increase in transaction costs and the efficiency of corporations, stifling of innovation, and hampering of economic growth. With global data flows raising global GDP, it is necessary to ask, what policy trade-offs are necessary to balance the legitimate concerns of countries against the unintended consequences that the impact of data localisation causes? There are four issues relating to the economic impacts of data localisation that emerging regulation in Africa needs to address. These are data ownership and its value, competition, trade, and foreign direct investment.

Taxing the digital economy has been on the international tax agenda for almost 30 years, revolving about how to tax an industry increasingly based on intangibles, scale effect, and market reach without a physical presence. But following Crawford and Joler’s concept of extractivism (2020; 2021), the digital economy is not only about BATX or GAFAM, but also about material resources, human labor, and data. The article analyses those long-forgotten elements of the Digital Economy’s true value chain, and, as the most recent two-pillar-based reform of the Inclusive Framework does actively exclude them, how those elements could be considered in the reform process.

In the globalised world that we inhabit, replete with its complex private transnational institutions and multinational corporations, energy law is often far from “national”. That is to say, hard legal problems arising in relation to energy issues within a particular country will often have a remarkably international character that can substantially transcend the immediate jurisdictional confines of the country in question.

Following the uprisings for Black life in the spring of 2020, the movement quickly marched its way into the academy with the viral hashtag #BlackInTheIvory harvesting confessions of black scholars – or ‘blackademics’. This post presents the perspectives of six anonymous early-career blackademics from universities in Europe, Australia and North America, each pursuing careers in international law. Sharing their positive and negative experiences navigating this industry, this post aims to foster exchange and understanding about the relevance of identity when establishing an academic career in international law.

The impetus for this blog post was the excellent book Invisible Women by Caroline Criado-Perez. Among other things, the book highlights evidence for the existence of a gender gap in the frequency of citations: plainly, women are cited much less than men in academic works. I would argue that this gender gap is likely to be equally pervasive in the context of international legal scholarship, and particularly prejudicial to junior women practitioners and early career researchers (“ECRs”). With this phenomenon in mind, this piece proceeds in three parts. First, it reviews the more general evidence for the existence of a gender gap in academic citations and legal scholarship. Second, it provides a personal perspective by reviewing gender equality in my own citation practice. Finally, it concludes by recommending best practices to minimize the gender gap, with an emphasis on the role of ECRs.

The genuine character of our struggles and the originality of our claims are the tests that we must take to shed the accusation of imitation. The ridicule of Westernization has been best described by post-colonial feminists as ‘triple colonization’ which means that we are colonized first by the colonial power, followed by patriarchy and then by Western feminists. When accused of such a mis-step, there is a massive watering down of our concerns. In the words of Spivak: ‘Can the subaltern speak?’