Symposium Posts

The African Union (AU) was built on these unresolved differences that persist to this day. The Constitutive Act of the African Union (Art. 3) assigns to the AU the responsibility to 'promote and defend common African positions on issues of interest to the continent and its peoples.' The AU Commission (AUC) Statutes assigned the task of 'drafting AU common positions and coordinating Member States’ actions in international negotiations' to a Secretariat that had no supranational mandate. The writing was on the wall.

August 1, 2022

Babatunde Fagbayibo and Nciko wa Nciko Arnold

https://doi.org/10.25159/2522-6800/11284

In a 2018 paper, Casella and Formenti rely on work undertaken by the United Nations Conference on Trade and Development (UNCTAD) to illustrate the differences between the FDI patterns observed among large multinational enterprises (MNEs) depending on their ‘internet intensity’. They map UNCTAD’s digital framework into a conceptual matrix positioning digital categories on the basis of their internet intensity (the internet intensity matrix or IIM), along two dimensions: production and operations, on the one hand, and commercialization and sales, on the other. The IIM distinguishes between purely digital multinational enterprises, non-digital MNEs and a group of ‘mixed model’ MNEs which falls somewhere between the two extremes. Their subsequent analysis and findings is where things get interesting: as it turns out, digital MNEs have a share of foreign sales that is more than 2.5 times the share of foreign assets compared to traditional, non-digital MNEs. In other words, digital firms do not tend to invest a great deal in markets abroad in order to secure foreign sales. This is despite the fact that many of the world’s largest digital MNEs often make in excess of half of their sales abroad.

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.

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.