Fabio Bassan begins by posing a bold question: Can the scale and sophistication of a private digital platform compel us to recognize its rules and operations as an independent transnational legal system, and if so, how should such an entity be regulated? The interrogation of this query forms the backbone of a brisk 150-page analysis. Along the way, Digital Platforms and Global Law unpacks the current regulatory landscape and rebuilds it, culminating in the articulation of a new international legal order keyed to the paradigm that digital platforms like Facebook, Amazon, and Google have wrought. It is an interesting premise for a scholarly monograph, but the execution often falters. The complexity of the material would have made this a challenging text regardless, but its message is frequently muddled by irregular prose and confounding organizational choices. The author's subject-matter expertise is abundantly evident in the detailed footnotes and higher-order analyses. Unfortunately, the language used to convey these ideas can be difficult to follow.
Digital Platforms sets the stage for its reform proposals through an in-depth exploration of the global regulatory environment, along with the rationales supporting the current approaches of the US and EU. This necessary preamble is nonetheless a tall order, accounting for more than half of the book's total page count. After crafting a functional definition for “digital platforms” that incorporates and expands on conceptions from both the legal and economic literature, it outlines twenty core assumptions that underly existing EU regulation in this area. This is followed by an investigation into the metrics used to measure abuse of market position and monopolization, each of which are linchpins for the exercise of antitrust and competition law (in the US and EU, respectively). Bassan then discusses the relative success of EU regulation in areas such as data protection, as well as the EU's significant blind spots concerning the protection of democratic processes and the ethics of certain emerging technologies (e.g., AI and distributed ledger technology/blockchain).
With this background established, Bassan progresses to the core of his thesis—that the major digital platforms are becoming private transnational legal systems. He argues that the internal rules and processes under which digital platforms operate are not directly attributable to either public or private international law, instead being derived primarily from international commercial norms and standards (an amorphous “lex mercatoria”). Unlike other multinational corporations, digital platforms also exercise what Bassan characterizes as largely autonomous legislative, executive, and quasi-judicial powers over their own internal affairs. While they are presently tied to the domestic legal orders of the places they incorporate and operate, Bassan envisions digital platforms achieving increased autonomy as blockchain technologies facilitate private currencies and self-executing smart contracts. Untethered from the infrastructure of traditional States, digital platforms may develop something approaching sovereignty, or so the argument goes.
Bassan is not terribly concerned with the geopolitical implications of this eventuality, and the analysis instead refocuses on how such quasi-independent transnational legal orders should be regulated by States and intergovernmental organizations. Over its final three chapters, the text examines whether so-called “monistic” or “dualistic” approaches can be applied to these conceptualizations of digital platforms as they relate to the rest of the international legal order. More specifically, Bassan questions whether digital platforms (as constituted in this analysis) can properly be considered subjects of international law, with distinct legal personalities. The work concludes with a thoughtful critique of current EU regulatory approaches and the suggestion of a new methodology centered on negotiated best practices that could subsequently be codified by State regulators. Bassan also advocates for the expanded use of private uniform law instruments (perhaps via UNIDROIT or UNCITRAL), which could systematize and multilateralize this negotiation process. The final analysis is intriguing, making the stylistic shortcomings of the prose that much more glaring.
Taken as a whole, Digital Platforms and Global Law is a fascinating, sometimes audacious, and often frustrating work. It is filled with novel ideas built on incredibly deep research. Nearly half of every page is devoted to detailed footnotes. The volume of citations alone would make this a formidable bibliography of the subject area. The author's multilingualism also allows for the inclusion of works from an impressively broad range of continental scholars whose work might not otherwise feature in an English-language publication. Occasionally the text even clarifies a highly complex subject—the discussion of AI and smart contract technology in Chapter 1, section 6, was a particular highlight. However, more often the writing is disjointed, featuring overlong sentences stuffed with asides, parentheticals, and superfluous clauses. In one particularly extreme example, a single sentence spanned two pages, contained 201 words, four semicolons, four parentheticals, and two em dashes, and included two footnotes. No idea could survive that gauntlet intact, no matter how original or profound. The organization of material also presents consistent hurdles to comprehension. It was not always clear why subsections had been inserted into the narrative midstream, and more than half the book is a single chapter. The text would have benefited from a stronger organizational scheme as a scaffold to guide the reader through the denser prose.
I am afraid I would not recommend Digital Platforms and Global Law for most law libraries. However, the depth of research from a wide variety of international scholars would make this an excellent addition to government agencies or academic law libraries whose patron populations are deeply interested in the mechanics of international law. In particular, a faculty featuring several scholars of EU law would find this to be an excellent resource.
