Elaine Fahey 

In my recently published book, The EU as a Global Digital Actor: Institutionalising Global Data Protection, Trade, and Cybersecurity I have sought to try to capture a range of issues emerging as to the EU’s digital and international relations agenda.

In the first book-length treatment of institutionalisation by a lawyer such as myself interested in international relations and global governance, the advancement of EU global data flows and digital trade through the framework of institutionalisation is developed. Institutionalisation is a highly used term but mostly without definition, in many circles and disciplines. Yet institutionalisation fundamentally characterises the EU and its approach to integration, evolution and development as an organisation. It also increasingly characterises its approach to international relations and the global legal order, working through and by institutions. I outline a number of core arguments aimed at changing the way we think about institutionalisation. The book makes a timely contribution by focussing upon an area of one of the chief strengths of the EU, that is its role as a global data actor linking it to its other key strength as a global trade actor, looking beyond standards and values.  Using the casestudies of EU-US, EU-Japan and EU-China relations- from some of the closest to the furthest examples of EU institutionalisation engagement in digital trade and data flows- it develops theoretical and empirical approaches, exploring a number of salient contemporary examples. The book identifies how the EU has pioneered high standards in data flows and also seeks to engage in significant digital trade reforms seeking commitments to such standards, grounded firmly in a heavily institutionalised approach to its international engagements. The book critically examines the EU’s approaches to institutionalisation using, in particular, trade law, data protection law and international relations law. It argues that the EU’s signature commitment to bureaucratisation through institutional design is understudied in this domain holistically, despite it generating significant global convergence in many fields. The book is the first to developed a detailed account of institutionalisation from the perspective of EU trade and data law. It signifies a major shift in how we view institutionalisation and the EU in two of the more extraordinary areas of global governance, trade and data flows.

The EU’s signature commitment to institutionalisation

This book represents a first major legal book on institutionalisation, focussing upon the casestudy of global data flows and digital trade, as one of the most cutting-edge areas of national, regional and international governance regulatory capture ever. Institutionalisation is the solution to most of the world’s problems but it is rarely scientifically developed. The book studies the EU efforts at institutionalisation as its subject in data transfer and governance regimes under EU law, from data privacy, data transfers to cyber law and policy, as its object. Data is the ‘lifeblood’ of the economies across the world but is also the source of much concern about the future of individuals, their rights, and capacity for commercial manipulation and also State and private actor warfare. Its governance, regulation and subjects and objects are increasingly captured by new regimes globally, yet its study is highly siloed. Few data privacy scholars focus upon digital trade; few trade lawyers focus upon cyber security and so forth. Institutionalisation has the capacity to synthesise these many cross-cutting themes.

The EU espouses the view that international institutions reflect the EU’s interests rather than shape them. The EU has a longer-term vision of society through institutions, aligning with a particularly liberal non-realist view of institutions. Externally, the EU has a recent history of promoting and nudging institutional multilateral innovations, from the International Criminal Court, a UN Ombudsman to a Multilateral Investment Court in its efforts to promote internationalisation, accountability, legitimacy and the rule of law as a broad global agenda. It has been vocal in proposing large-scale reform of the WTO on the verge of institutional collapse. It has proposed widespread regulatory cooperation with partners through the institutionalisation in its new generation trade agreements. By opting for public institutions and institutionalisation, for example, within Transatlantic Trade and Investment Partnership (TTIP), the EU attempted to shift away from the non-institutionalisation of transatlantic relations in order to enhance the transparency and the ‘governability’ of transatlantic relations through institutions. The EU seeks to position itself within global debates and global leadership of a Multilateral Investment Court to reform ISDS globally.  The first major effort at institutionalisation by the EU with the new Biden administration was for a Transatlantic Trade and Technology Council. Internally, the EU struggles with partial institutionalisation as a solution to many complex policy fields, e.g. migration and eurozone. For example, in the most crisis-ridden domains of the EU, partial-institutionalisation and incomplete architectural design (legal, political, structural) is often at root of major challenges. Yet institutionalisation has broadly positive and even laudable public interest goals when pursued by the EU. Institutionalisation appears as an unstoppable EU forte in its development internally as much as externally.

The book thus explores through institutionalisation how EU is the world’s most famous legislator, regulator and rule-making organisation of successful supranational bureaucracy and technocracy beyond the State.

This book examines comparative approaches to data institutionalisation in North America with the US and Asia with the EU, considering Japan and China in Chs. 5 and 6. It considers leading trade and EU external relations partners since the 1990s in particular, after which a key turning point for data and digital trade regulation blossoming thereafter. It examines how the EU engages with countries with different approaches to law and institutions and it examines the fundamental differences between Japan and China as to data issues, a partner and another at further arm’s length with far less legal and institutional interactions.

The book argues that to capture a realistic and accurate picture of EU data institutionalisation practices, more holistic focus is needed upon data, i.e. including cross-cutting areas of data governance, transfer, digital trade, cyber regulation, law enforcement and the internet of things. In turn, a holistic focus on data helps us understand institutionalisation, feeding in to each other. Topics previously never under the study of international trade agreements are now part and parcel of FTA texts and strategic partnership agreements alike. They are the subject of more institutionalised regimes than ever.

This book aims to consider data institutionalisation holistically, as a composite area of contemporary regulation, by using cross-cutting studies of competence spanning internal and external dimensions but largely focussing upon the external dimensions. It analyses both personal and non-personal data, looking at the heterogenous concept of data in the digital economy. It largely presents a descriptive rather than normative account as to the need to frame legal, legislative and regulatory developments in this fashion.

I hope that the book project stimulates further discussions, perhaps not just limited to law and look forward to engaging with readers.

Elaine Fahey 

Institute for the Study of European Law (ISEL), Professor of Law and Jean Monnet Chair of Law and Transatlantic Relations

City Law School, City, University of London