The Competition Commission of India (CCI) is known for its proactive approaches in addressing the anti-competitive practices of certain FAAMG companies in India. Yesterday at 8.57 PM IST, a Press Release by PIB informed about the CCI’s imposition of penalty on Google, which reads as follows: The Competition Commission of India (Commission) has imposed a penalty of Rs. 1,337.76 crore on Google for abusing its dominant position in multiple markets in the Android Mobile device ecosystem, apart from issuing cease and desist order. The CCI also directed Google to modify its conduct within a defined timeline. In this article, I will deconstruct the press release and elaborate about the purpose, significance and legal outlook that CCI and Google could take up on this order. To begin with, the order is significant. The detail however lies in the purposive aspect that the Commission is interested in. The Order, Deconstructed The CCI focuses on the 5 kinds of markets in India, with which the Android Mobile Device ecosystem can be related with, on the basis of which the Commission imposes penalty on Google: Market for licensable OS for smart mobile devices in India Market for app store for Android smart mobile OS in India Market for general web search services in India Market for non-OS specific mobile web browsers in India Market for online video hosting platform (OVHP) in India. Now, this is no revelation, because the markets posited by the Commission are obviously critical, when it comes to Indian digital markets. According to CCI, the legitimate basis of delineating the 5 markets comes from understanding Google and Apple’s business incentives behind even dominating mobile device and applications ecosystem. Google’s approach towards garnering consumers is a horizontal approach, i.e., “increasing users on its platforms so that they interact with its revenue earning service i.e., online search which directly affects sale of online advertising services by Google.“ The reason this is a horizontal approach is, because ecosystem, which Google has maintained, relies on the proximity of services, which could be interconnected or limitedly distinct, for example, YouTube, Google Maps, etc. On the other hand, Apple’s larger focus is creating a vertical chain of high-end smart devices, in the form of an ecosystem (which we can understand from Apple’s Privacy Features, thereby clearly affecting Meta (Facebook), Spotify and other companies). In a nutshell, the main 3 points depicted in this diagram made by CCI explain why they have imposed penalty on Google, as of now, focusing on the three consumer groups. Now, on OEMs, the CCI has made valid points, which, despite being preliminary, has substance. Let us also analyse what measures regarding OEMs, have been recommended by the CCI: OEMs shall not be restrained from (a) choosing from amongst Google’s proprietary applications to be pre-installed and should not be forced to pre-install a bouquet of applications, and (b) deciding the placement of pre-installed apps, on their smart devices. This measure is genuine, and practical enough. Deciding the placement of pre-installed apps, is undoubtedly connected to the lack of choice that Google offers via making its proprietary applications, when they are pre-installed. Licensing of Play Store (including Google Play Services) to OEMs shall not be linked with the requirement of pre-installing services and apps offered by Google. Delinking the pre-installing requirement is also a genuine measure, which is a consumer-friendly measure, to promote the economics of choice. Google shall not deny access to its Play Services APIs to disadvantage OEMs to ensure interoperability of apps between Android OS to meet compatibility requirements of Android Forks and Google. The measure is reasonable, and would create safer spaces for OEMs in India, especially in the digital markets. Google shall not impose anti-fragmentation obligations on OEMs. OEMs should be permitted to manufacture / develop Android forks based smart devices for themselves. Google shall not incentivise or otherwise obligate OEMs for not selling smart devices based on Android forks. Now, there is no doubt that the measures proposed in good faith, are rational and bear context. Now, it would be appropriate to assess the repercussions of this order, only with a competition law perspective because the technology law governance framework in India, is yet to be legislated beyond the Information Technology Act, 2000, which again, considering the 2021 Rules, only would trace the role of Google as an intermediary. We have to understand that on technology-related adherence, big tech companies have not properly adhered with India’s requirements. Part of the blame goes to the companies not being concerned, while the other issue lies with the Government for coming up with impractical rules. This excerpt from an article published by Swarajya on the IT Rules explains the issues, for example, in the Part II, Rule 5, Sub-rule 8: The author explains the issues in this sub-rule: If the intention of the government was to bar the intermediaries from playing publishers, then there was no need to lay down elaborate ground rules for censoring. Some might want to argue that this censoring is in relation to the orders passed by the court or the government but for such requests, others clauses have adequately dealt with in depth. Another error was pointed out in Rules 3(2) and 4(6) by the author, which further explains the Government’s failure in creating practical regulations: This is in addition to all the requests that the intermediaries have to comply with from the law enforcement agencies and the government departments. Given the number of users, it would be practically impossible for any intermediary to adhere to these rules even if they hire an army of employees to execute it. It seems that the rules have been framed to ensure non-compliance and create numerous loopholes to punish intermediaries than come up with a decent mechanism that is aimed at resolving genuine problems. Even the earlier Data Protection Bill proposed had innumerable errors, which needed correction. Unless any consistent regulation or law is approved, which has a flexible approach, mere posture to regulate does not suffice. It is reasonable to state that CCI’s approach towards FAAMG companies and their anti-competitive practices, at best, has been consistent and specific. The problems raised are clearly genuine. Can there be a Possibility of Self-Regulation and Ex-Ante Measures? Now, it is obvious that the CCI points out to the bundling of services and products and leveraging practice attributed to the same in the case of Google. However, there are genuine concerns on the regulatory landscape. Vikas Kathuria discusses the same in an article for Observer Research Foundation: The antitrust issues that have arisen elsewhere have resonated in India as well. There have been five cases against Google before the Competition Commission of India (CCI) spanning search, Android OS and Play Store. […] While the CCI is doing its bit to ensure fairness in digital markets, a need for some form of regulation is already felt. In its e-commerce market study, the CCI has mentioned the need for marketplace platforms adopting self-regulation to ensure transparency concerning search ranking; collection, use and sharing of data; user review and rating mechanism; revision in contract terms; and discount policy. This form of regulation, however, falls far short of preemptive ex-ante regulation that the EU has suggested in the proposed Digital Markets Act for ‘gatekeeper’ platforms. Consequently, India should adopt binding ex-ante regulations for digital ‘gatekeepers’ to ensure market contestability for businesses including start-ups and fairness for users. The CCI’s measures, if looked closely, show that they might indicate Google to adopt some course correction measures to indicate their focus towards self-regulation, based on the details and data Google had offered them. Although, self-regulation measures can be legitimised through any new rules or notifications, the Commission in the case of cab aggregators, has released an advisory on self-regulating measures. Now, as Kathuria suggests, an ex-ante regulation could be a good tool for the Commission to further steer their measures on “gatekeeper platforms” like Google and Apple. However, a reason that CCI has not come up with any proposed regulation, is because advisories and orders, may be used for a piecemeal approach to address anti-competitive practices, considering the strategic market status (SMS) of companies of those sorts. In the Indian case, there is no legal understanding or basis of the term “strategic market status”. Maybe the Commission could find it reasonable not to integrate their focus on companies which may fit the category of SMS, as of now. Nevertheless, the Government of India is certainly interested to create a technology and competition governance framework, which addresses the problem of vulnerability in the markets due to the presence of companies in multiple sectors. We can safely state that this order, is clear in addressing Google’s dominant position. However, from a governance perspective, it is necessary that the Commission may opt to estimate what kind of self-regulatory measures can be adopted with time. Common Issues, Special Approach India’s competition law approach towards FAAMG companies is specific and practice-focused, despite the obvious fact that many issues raised by the regulatory body on the anti-competitive practices, are commonly faced by regulators across the globe. Biding time would be necessary, before self-regulatory or ex-ante measures could be endorsed by the Government. However, the CCI through such orders and advisories, can attempt to address and embrace India’s potential to become a regulatory superpower, with a hedging approach. As Nikhil Pahwa, the founder of Medianama, points out , Google may go to the Indian courts to challenge CCI’s order, due to hefty restrictions on their business model and practices by the regulator. As the tweet quoted above explains, enabling more security and fragmenting Google’s power to control the ecosystem may be a reasonable move. However, the cross-compatibility of applications can only be dealt by data and tech-related regulatory solutions. The lack of compliance among technology companies however has to be dealt with a comprehensive outlook which may solve the multi-sector implications of the companies’ presence, with time. Additionally, Google does not support the proposition of having a self-regulatory body, according to Reuters, which Facebook India had suggested. Perhaps, decoupling is not the approach that competition regulators adopt. Blending domestic regulations and public policy choices that governments make, in the case of digital technologies, would create sustainable information economies and chains. Some Updates Recently, Google was suppose to impose 15-30% commission on in-app sales on Play Store, while denying app developers the choice to opt for other payment gateways in India. Another penalty of approx. 933 cr INR has been imposed by CCI. This is a landmark development. Deadline for implementation of this billing policy was set on October 31, 2022. In addition, a new order has been published by CCI stating Google's GPBS to be anti-competitive. Point 9.2 in the order is clearly landmark in virtue and action. The assessment explains the Commission's conclusions: Point 9.2 in the measures explains a critical action Google is required to do, which will hurt them deeply: Google shall not impose any Anti-steering Provisions on app developers and shall not restrict them from communicating with their users to promote their apps and offerings, in any manner. If we look these measures consecutively, we can say that the approach taken by CCI is quite competent and will have major implications ahead for good.

Digital Technologies have transformed supply and information chains for businesses around the globe. For instance, artificial intelligence (AI) as a technology has permeated every sphere of commercial business activities ranging from chatbots, voice recognition, and facial recognition. The general concerns of privacy, data breaches, and specific concerns of bias and data profiling can ensure a large number of disputes. Therefore, the importance of ADR methods to address such issues with expert technical knowledge and understanding the know-how of technology is very important. Regardless of this specific technical expertise, it is important for dispute resolution professionals and arbitrators to identify some potential issues in any technology disputes. In this article, the trends related to dispute resolution mechanisms on issues surrounding artificial intelligence and other digital technologies have been discussed. Current Means of ADR on Issues Related to Digital Technologies Generally, the stakeholders who are involved in mechanisms of dispute resolution i.e., the arbitrators, negotiators, mediators, and other dispute resolution professionals will often have to deal with the intermeshed questions of law and technology to identify the party responsible for the actions committed by any AI product or services. In order to counter the common issues arising from dispute resolution mechanisms such as costs, time frame, and jurisdictional issues it could be a way to adhere to model clauses for dispute resolution. Procedural rules from various jurisdictions can be combined to create uniform rules for technology arbitration, negotiation, and mediation at a global level. These procedural rules and guidelines will confirm a time frame for the resolution of a dispute and will resolve basic jurisdictional challenges and promote an efficient dispute resolution system. The substantive and procedural laws are already prefixed by the parties in the contracts. This will also ensure that jurisdiction is conferred to a specific place. These model clauses and procedural guidelines will assist parties involved in the dispute as well as the dispute resolution professionals to adjudicate upon the developing areas of technology-related questions instead of diverting focus on extant conflict of law issues arising in dispute resolution. For a more consumer-focused dispute resolution, the guidelines should be domestically oriented depending on the place where the company operates within the country or where the consumer resides (in personam jurisdiction) or a more convenient forum (Forum conveniens). The various methods of Dispute resolution to deal with Technology related disputes would include the following as described. Technology Arbitration Technology-related arbitration has grown from typical commercial contracts and agreements to include a wide array of claims pertaining to consumer, IPR, and competition law issues. Lawsuits arising from the liability of the semi-autonomous and autonomous vehicles, for example, can also be addressed via arbitration. The complexities arise in identifying the parties responsible for the malfeasance. It can include the owner of the system/technology, the developers and the engineers or the company manufacturing the AI products and services. The essential feature of technology-related arbitration is to ensure that a neutral place for dispute resolution is chosen. For example, since it involves questions that would require technical expertise, especially on privacy concerns surrounding the AI system due to an error in the code of the system, it can be dealt with by neutral experts that have specialized knowledge and experience to assist the arbitrators in the decision-making process. Since Arbitration is relatively a flexible process where the parties can lay out their own procedure, costs are shared and specialized expert opinion can be provided in complex artificial intelligence disputes. External Dispute Resolution (EDR) This is a widespread practice for ensuring accountability and an oversight mechanism, for example, in the case of Australian Financial Complaints. This mechanism of dispute resolution can also be utilized for any consumer-related issues arising from technologies such as privacy concerns, compensation for any tort committed, etc. For instance, if an AI service or product has mishandled personal information or caused damage to the consumer, then an EDR scheme can be proposed to handle specific consumer complaints. Complaints can be made by Consumers for which EDR will ensure that the companies and businesses can respond within a specific time and accede to the request of the consumers. If no satisfactory response is received by the consumer, then in accordance with the policies, guidelines and recommendations, further examination of the consumer complaint will be taken up by the independent persons in EDR. Upon a fair and reasonable assessment, negotiation will be conducted between the consumers and the businesses for reaching an agreement on the amount of compensation. Expert determination Expert determination can take place if there is a pre-existing expert determination clause in the contract between the parties. A dispute can be referred to as expert determination where the submission can be made by parties. An expert can be selected by the parties unanimously and can be someone with technical knowledge and expertise to determine the various technical facets of the dispute. The decision of the expert would be binding on the parties. The expert determination as a dispute resolution mechanism can be used alongside an existing arbitration or mediation case. It can be used for IPR-related claims arising from the dispute. The clauses governing expert determination in the contract would establish the jurisdiction hence removing the issues associated with jurisdiction. Unlike arbitration, where an expert would be appointed at a later stage by the Arbitrator, expert determination appoints an expert to decide the entirety of the dispute[1]. The usual problem with technology-related arbitration is the appointment of technical experts from both the sides to adduce evidence, each providing their expertise on the dispute at hand. The question at hand remains with the arbitrator to choose which expert evidence to be preferred and this major question is left to be decided by the arbitrators. These issues with technology-related arbitration have encouraged parties to appoint a neutral technical expert themselves for analysing the entire dispute and are the decision makers of the dispute. This usually involves the appointment of a neutral technical expert by the parties through an agreement. In a usual case, if the parties cannot agree on a neutral expert, then an industry expert will be appointed. In the case of AI-related disputes, a neutral technical expert can be appointed by a proposed Law and Technology body, whose details have been provided at a later section in this article. For instance, if there is an AI-related dispute concerning the manufacturing of the AI product and the parties involved are the company’s developer of the AI software and the manufacturing company, then a neutral technical expert can be appointed in accordance with the agreement entered into between the company and the manufacturers to decide the dispute instead of appointment of an arbitrator. The decision of the expert will be non-binding or binding, at the option of the parties to the agreement. However, parties should seek some guidance while drafting the expert determination clause to reflect accurately and layout exhaustively the scope of disputes that are submitted to experts for decision making. More often than not, when there are a large scope of disputes and defaults arising from AI-related technology services, disputes can be split between technology arbitration, meditation-negotiation and expert determination depending upon the parties involved, cost-effectiveness, and nature of the dispute. Expedited Arbitration As the name suggests, it is an arbitration method used in WIPO (World Intellectual Property Organisation) as a dispute resolution mechanism that is carried out in a short span of time by eliminating costs and adhering to strict time limits in each stage of the Arbitration. WIPO has proposed the Expedited Arbitration Rules (2021) consisting of a set of procedural rules that parties can follow for any arbitration arising out of commercial disputes between parties. A sole arbitrator is nominated by the parties for the appointment. Further, the non-common usage of ADR for technology firms was noticed at an international level when a working group of the United Nations Commission on International Trade Law (UNCITRAL) explored the legal implications of dispute resolution in a digital economy. This is mostly because the tech sector has characteristic claims involving technical and specialized questions and demands a highly flexible mechanism to overcome the innovations of the emerging technology. Further draft provisions for technology-related dispute resolution has defined a technology dispute to mean a “dispute arising out of or relating to supply, procurement, research, development, implementation, licensing, commercialization, distribution, and financing”[2]. The draft had discussed several issues as to why technological disputes have not preferred ADR mechanism by addressing questions of time frame (Draft Provision 4) and case management conferences (Draft Provision 3). In case management conferences, the arbitral tribunal will often discuss procedural questions of how arbitration proceedings will be conducted and technology experts can be decided beforehand. This will ensure that any future ambiguities and further procedural difficulties will not arise at a crucial point of dispute resolution. The proceedings are structured during the case management and handling expert evidence is discussed so as to prevent further complexities from arising in the future. However, the draft rules have not specified whether the provisions and procedural framework are sufficient for the large scope of technology disputes. Proposing a Law and Technology Body Other additional concerns that have not been dealt with are questions of jurisdiction, costs, enforceability and bargaining power of the parties in disputes are also some of the common concerns surrounding technological disputes especially for consumers of such technologies. Engineers and experts from the field of AI and other digital technologies should closely work with dispute resolution centres in the country to render expert advice and provide a qualified technical knowledge upon the subject of fixing liability on the companies, developers and manufacturers. Subsequently, the establishment of a Law and Technology body consisting of various stakeholders including developers, engineers and lawyers could be made possible in various countries to tackle issues relating to emerging technology innovations and legal issues surrounding the same. Dispute resolution professionals can closely work with the body to estimate the most effective dispute resolution mechanism to be deployed while dealing with emerging technology law questions[3]. Conclusion on Law 2.0 and Challenges Ahead AI and its profound impact on society can raise the question of how such an emergent technology should be regulated and the regulatory challenges surrounding it. The rapid pace at which development in AI is heading presents the modern government-enacted system of regulation (Law 2.0) with a series of challenges that the static regulations cannot address. Dispute resolution and cooperation between different government entities and the introduction of new regulatory authorities are very important at this stage. The response time to implement the following changes within the government-enacted regulatory regime would outpace the technological changes made within the field of AI. Therefore, a policy-based approach estimating the soft law implications of the phenomena can be used to counteract a wide range of challenges posed by the legal technology industry. Dispute resolution professionals can rely on the policies and guidelines that are focused on dealing with characteristic issues of privacy, data breaches, confidentiality, and IPR claims. This would ensure that the future of dispute resolution would be expeditious without having to rely on court decisions and precedents[4]. This is significant to mention as rapid changing requirements of tech dispute resolution, rigid systems of lawsuits, and relying on precedents to deal with tech disputes may be futile for an industry concerning AI and technology disputes that has evolving changes. They can be systematically addressed by new and developing institutions that evolve with the changing requirements of technology, innovation, and industry. The unique feature of technology disputes poses a challenging landscape for dispute resolution due to shortened product life cycles and innovations within the field. In the competitive environment of technology companies and services, dispute resolution professionals should be equipped and empowered to deal with the specialized requirements of technology disputes. Significant issues of jurisdiction and short timelines for dispute resolution can lay out an optimistic future for tech dispute resolution. Arrangements at both global and domestic levels should be systematically focused upon for maintaining standardized dispute resolution mechanisms and qualified dispute resolution professionals to handle high-technology disputes. Information sharing about mechanisms of dispute resolution deployed for specific tech disputes should be promoted between countries. Further Readings [1] The Arbitrator and Mediator; (2013) 32(2); ISSN 1446-0548 [2] United Nations Commission on International Trade Law Working Group II (Dispute Settlement). [3] Arbitration Tech Toolbox: Technology- Related Dispute Resolution: Tailored Rules at UNCITRAL; Raoul J. Renard; July 14,2022 [4] How to Improve technical expertise for judges in AI related Litigation- Melissa Whitney; November 7, 2019

This article is co-authored by Poulomi Chatterjee. In a recent article on Law 3.0 and Soft Law, it is explained what Soft Law has been, in conceptual terms, and how does it shape our legal decisions and policy actions. In this article, as a follow up to the concept of Soft Law, we take the example of the policy construct of the Indo-Pacific, to examine the concept as a driver of soft law tendencies, in India and the rest of Asia. The coverage of the concept of Indo-Pacific is widely pan-Asia, since governments across the world including the United States, India, Japan & Australia and regional organisations such as the European Union embrace the importance of this concept. It does have important ramifications in various fields of law, including international law, law & digital technologies, environmental law and corporate governance & ethics. A Quick Recap to Soft Law Soft Law is a concept, mostly seen in the realm of international law, where we see emerging trends of hortatory (or pedagogic) measures, rules, systems, regulations and even norms, whose point of origin is not a system or authority of law (which is usually a top-down authority), but a set of stakeholder entities, institutions, groups and individuals, who have a genuine and legitimate role to play. They might not have the role to become an equal stakeholder to address or even acknowledge a question of law. However, their contributions, interventions and approaches to realities bound by legal systems and frameworks are essential, since they may or may not be put into use by Governments and International Organisations across the world to justify their actions and public policy measures. In many ways, the role of Soft Law is clearly visible in fields like international commercial arbitration, environmental law, international space law and technology law, for starters. Here is an excerpt from the 2018 Draft Conclusions on the Identification of Customary International Law (with Commentaries) produced by the UN International Law Commission, A/73/10, Part 5: Various materials other than primary evidence of alleged instances of practice accepted as law (accompanied by opinio juris) may be consulted in the process of determining the existence and content of rules of customary international law. These commonly include written texts bearing on legal matters, in particular treaties, resolutions of international organizations and intergovernmental conferences, judicial decisions (of both international and national courts), and scholarly works. Such texts may assist in collecting, synthesizing or interpreting practice relevant to the identification of customary international law, and may offer precise formulations to frame and guide an inquiry into its two constituent elements. Part Five seeks to explain the potential significance of these materials, making clear that it is of critical importance to study carefully both the content of such materials and the context within which they were prepared. Another excerpt states the following, from Part 5, i.e., Conclusion 14 states clearly that the teachings of the most highly qualified publicists may serve as subsidiary means: The Commentaries also state two important aspects of development of legal principles and concepts. The first aspect of the development of law, has been described in this excerpt: There is need for caution when drawing upon writings, since their value for determining the existence of a rule of customary international law varies: this is reflected in the words “may serve as”. First, writers sometimes seek not merely to record the state of the law as it is (lex lata) but to advocate its development (lex ferenda). In doing so, they do not always distinguish (or distinguish clearly) between the law as it is and the law as they would like it to be. Second, writings may reflect the national or other individual viewpoints of their authors. Third, they differ greatly in quality. The second aspect on the subsidiary means, especially on the role of publicists has been aptly described: The term “publicists”, which comes from the Statute of the International Court of Justice, covers all those whose writings may elucidate questions of international law. While most such writers will, in the nature of things, be specialists in public international law, others are not excluded. The reference to “the most highly qualified” publicists emphasizes that attention ought to be paid to the writings of those who are eminent in the field. In the final analysis, however, it is the quality of the particular writing that matters rather than the reputation of the author; among the factors to be considered in this regard are the approach adopted by the author to the identification of customary international law and the extent to which his or her text remains loyal to it. The reference to publicists “of the various nations” highlights the importance of having regard, so far as possible, to writings representative of the principal legal systems and regions of the world and in various languages when identifying customary international law. The excerpts clearly give a pathway to governments and international organisations to promote soft law measures in the development of law per se. It thereby makes obvious that one of the most interesting features of soft law is that it can never be a static way of unnerving legal measures. As stated in the article on Law 3.0 and Soft Law, the excerpt provided explains the dynamic nature of Soft Law: It is a phenomenon where the repositories of legal thinking can always learn the best from the policy phenomenon, which are uncertain, unclear and hortatory. Lawmakers and courts can try to make Soft Law rigid, but the nuance always lies in the details. It is impossible to keep up with the rigidity, as Soft Law has to be fungible. Otherwise, the instrumentation which we call as “the” Soft Law, will automatically become a relic or existing part of the Hard Law conundrum, in the form of regulation mechanisms, laws, judgments or any other possible form. The following excerpt from Soft Law in Outer Space [Irmgard Marboe (Ed.)] (2012) may be treated as a reminder to the practitioners of international law, on the dynamic nature of Soft Law: On the other hand, as public international lawyers, we need to be careful not to read too much into such instruments when it is not appropriate. Just like, under the law of treaties, it is not permissible, in the absence of ambiguity in the terms of a particular treaty provision, to ‘read into’ that provision rules to reflect what should be, it is not appropriate to convert in our mind something that is not, and not intended to be such, into a binding rule or obligation. This need for caution sometimes goes against our instincts as academic international lawyers, given that we operate in a field of law where normative rules are distilled from descriptive behaviour, such as in the formulation of customary international law. A diagram from the previous article on Law 3.0 and Soft Law has been provided for reference: The Language of Indo-Pacific and its Relevance The Indo-Pacific region, as we know, is a concept promoted in the field of international relations and Asia studies, where the importance of two ocean regions, Indian Ocean Region and the Pacific Ocean Region is attached to the concept of a rules-based international order. A geographical depiction in From Asia-Pacific to Indo-Pacific: Significance, Implementation and Challenges of the Indo-Pacific region as understood by different countries in Asia has been provided for reference: Now, the concept has earned its value since the early 2000s, when the Former Japanese Prime Minister Shinzo Abe had promoted the concept of a Free and Open Indo-Pacific. We see that in the year 2017, a minilateral grouping known as the Quadrilateral Security Dialogue (also known as the Quad), consisting India, the US, Australia and Japan, is reinstated, and the level of diplomatic engagement has improved from the level of Foreign Secretaries to Foreign Ministers and Heads of States (and Governments). As the conflict in Ukraine unfolds, in February 2022, a Quad Foreign Ministers’ Meeting was conducted in Melbourne. The objectives of the Quad, have been explained by the White House Statement on the grouping: Today, we pledge to respond to the economic and health impacts of COVID-19, combat climate change, and address shared challenges, including in cyber space, critical technologies, counterterrorism, quality infrastructure investment, and humanitarian-assistance and disaster-relief as well as maritime domains. Meanwhile another group of 4 nations have come up to form a minilateral grouping, where the region of focus is West Asia, known as I2U2, with India and the US joined by the United Arab Emirates and Israel. The recent I2U2 Leaders’ Virtual Summit was conducted in July 2022. In the Press Release by the Government of India, the objectives of I2U2 have been provided in brief: ​I2U2 is aimed to encourage joint investments in six mutually identified areas such as water, energy, transportation, space, health, and food security. It intends to mobilize private sector capital and expertise to help modernize the infrastructure, low carbon development pathways for our industries, improve public health, and promote the development of critical emerging and green technologies. Now, there is a political overtone to the concept of the Indo-Pacific, which these 2 important groupings would reflect with time (for example, criticising actions or decisions of other countries). Yet, India as an actor in the Indo-Pacific, with and beyond these groupings, despite its own state interests, has shown to become an international actor with concerns beyond the overtones, which even has been reflective in its international law jurisprudence for years, which has its own limited criticisms. An article on India’s approach to international law has been provided for reading. The importance of the concept of Indo-Pacific, in the field of jurisprudence, and not just international law, lies in the details of the understanding of value systems and policy thinking which this concept promotes in Asia. Earlier, the concept of international law, in the post-Cold War times had the indulgence of the Asia-Pacific understanding, which was oriented around the policy visions and value systems promoted by members of the regional organisation, ASEAN (the Association of South East Asian Nations), Japan, the Republic of Korea and the People’s Republic of China. After 2020, the concept of the Indo-Pacific has become relevant for India, not just for its sovereign interests, but also to facilitate innovation in policy thinking, which directly links to India’s own challenges of developmental economy, sustainable development, legal innovation and many important areas of concern. Areas of security and counter-terrorism also come within the scope of international humanitarian law, and India’s contribution to that jurisprudence, has been impressive. Hence, just because the concept has relevant political overtones, it would be premature to discount the policy groupthink that the Indo-Pacific as a regional construct offers. For example, many significant developments in the field of international law and even policy matters of global concern, have been promoted by international cities. Here is a list of some important conferences, which relate to the information age and how international law has been embraced, starting from diplomatic cooperation to collective and several policy actions: World Summit on the Information Society (Geneva, 2003; Tunis, 2005;) World Conference on International Telecommunications (WCIT-12) (Dubai, 2012) International Conference on Artificial Intelligence and Education, Planning Education in the AI Era: Lead the Leap (Beijing, 2019) World Trade Organisation 12th Ministerial Conference (Geneva, 2022) The significance of international cities is not limited to mere political presence. They act as locations of strategic importance and have an important role in shaping policy impact at governmental and intergovernmental levels. It is therefore necessary to understand the value and purpose of the Indo-Pacific concept in that regard. The language of Indo-Pacific as a regional construct explains how the concept may drive soft law in India’s own legal and regulatory affairs with time: Shaping India’s Knowledge and Information Economics Shaping India as a neutral and reliable forum to promote traditional, modern and diverse means of alternate dispute resolution Shaping newer legal, technological & economic solutions on sustainable development, taking the principle of “common but differentiated responsibility” into due consideration Shaping India as the hub of digital innovation and mobility for governments, researchers and businesses Now, these these aspects of influence may be related to India’s domestic interests, but the impact it could have would be global. India certainly has the potential to shape the regulatory standards pursued by governments and intergovernmental bodies across the globe, which is not limited to the Government of India, and its positions. Thus, the minilateral groupings in their objectives are trying to show what aspects of development and security are they are interested to take up to promote prosperity and global stability. Indo-Pacific Approaches to Shape International Law The formation of several minilateral groupings in the Indo-Pacific region has several implications on the field of International Law, especially in regards to trade. Quoting Mr. Abe’s idea of the Free and Open Indo-Pacific (FOIP), ever since its recognition, the Indo-Pacific region has been looking forward to a rules-based international order, aside from the rule of law, freedom of navigation and overflight, peaceful settlement of disputes, and most importantly, the promotion of free trade. However, all of these terminologies mentioned, are based on the positivist understanding of international law and even domestic laws, in most Asian countries (for example, India). The development of law (lex feranda) at regional and global levels, are not guided merely by the principles and questions of law, but also by those policy understandings that build the foundation of the same. Let us take the examples of China and the United States, whose importance in shaping up the “rules-based international order” after the 1990s has been significant. Lessons from Beijing To quote a recent example stating why the Indo-Pacific as a construct is of essential value, is to assess the scope of China’s Belt and Road Initiative (BRI). BRI is Asia’s biggest supply chain initiative launched by the Chinese Government in order to reap the maximum trade benefits from all across the region. One of the main aims of China through this initiative is to connect the continent of Asia with that of Europe and Africa by way of land as well as maritime networks, to simply improve the regional integration and increase trade between these areas, China benefiting the most from it, while also stimulating tremendous economic growth. Moreover, it is also contended that since the People’s Republic of China is heavily dependent upon the mechanism of trade, it being the largest manufacturing country as well as an exporter of goods of high demand; it is also heavily dependent on the routes provided by the Indian Ocean Region, which translates the purpose of the Belt Road Initiative (BRI) acting in favour of the country. Lessons from Washington DC After the 2000s, the role of the United States in shaping public policy and avenues of governance has shaped drastically. We see that after the 2008 crisis in West Asia and North Africa, the role of the US Government in shaping public policy and self-regulatory approaches to governance, in various countries, has been subject to decline. Now, in the information age, we anticipate the role of various entities, such as FAAMG companies (big technology companies), which even institutions like the European Commission are concerned about. After the UN Security Council-led actions in Libya, the United States Foreign Policy has been subject to actions, which ally their own domestic concerns. Their role in shaping public international law has been already taken over by a huge diversification of European, Chinese, Indian, African and even Latin American scholarships. The United States had pledged to support efforts to combat climate change. However, even after the accession of the Paris Accords, it has not achieved the required commitments. Nevertheless, the US and the EU are supporting climate efforts in India, in cooperation with the Government of India, which surely can shape incremental changes in creating and maintaining regulatory standards in law and environment in Asia, as the United States attempts to create its presence in Asia again. Now, it is important to realise that various state actors, in the history of international law, have shaped the development of law in various domains constantly. For example, the advent of international technology law has to be connected with the development of international telecommunication law and international IP law. Even the USSR and the United States despite many disagreements over the codification of international space law treaties, had invested in the nuances and sophisticated features of the scholarship involving the pertinent legal questions. In general, many documents such as proposals, draft resolutions, communiques, statements and policy prescriptions are legally not binding. They still exist because they are useful in doing 2 things: Tracing out the origins and phases of development of the legal and policy questions for consideration Improving their trajectory of action, omission and review (especially in the case of justifying state practices/an international legal custom, for example) When we look at the Indo-Pacific, we learn from the US and China that their policy visions do represent a dichotomy of visions which remain congruent, hostile or divergent. The trade conflict between the US and Chinese Governments in 2018 also reflects the same phenomenon, which may remind us the ramifications of the Brexit negotiations between the European Union and the United Kingdom on the world economy, since 2017. Another example that could be taken would be the disintegration of the Soviet Union, which had a serious impact on the Russian economy as well as the economies of various non-aligned countries, including India. This can be effectively related to a statement by India’s External Affairs Minister Dr S Jaishankar, whose excerpt is provided as follows: Connectivity, now encompasses data and energy flows not just unhindered movement of goods and people. Data, digitization and technology are redefining and reshaping almost every aspect of business and society. India and ASEAN contribute to the ongoing rebalancing of the global order. We are driven by a rising consumer class, a strong start-up ecosystem, a growing internet economy and a robust demographic dividend. We have also between us the necessary trust and transparency now so central to digital cooperation. The Approaches and their Impact India’s jurisprudential approach to adapt with international legal instruments or norms directly or indirectly, has been tumultuous due to many reasons. Some of the general reasons include the inconsistency of state practices or the judiciary’s inconsistency to settle on some first principles of understanding on issues of general international law. An excerpt from an article published by the Indian Express explains the phenomenon in the case of the Supreme Court of India: Several facets of this judiciary-led transition from dualism to monism require elucidation. First, the apex court incorporating CIL as part of the domestic legal regime is consistent with the practice of other common law countries. However, the sticky part is the ease with which CIL is accepted as part of Indian law. For instance, the Supreme Court’s willingness to readily accept the precautionary principle as part of CIL flies in the face of international law debates where the acceptance of this principle as a customary norm remains contested. Determination of whether a particular provision indeed constitutes a binding customary norm under international law requires the double requirement of state practice (the actual practice of the states) and opinio juris (belief that the custom is part of the law). The apex court rarely conducts such an analysis. Even the recommendations by the Law Commission of India do not stand out. Some tribunals have had this problem of delivering inconsistent judgments, which on principle and purpose, have been unclear. Now, here are some instances where adapting with the concept of the Indo-Pacific as an India-centric platform of innovation in public policy, creates tendencies for incursion of soft law approaches in and through the Indian constitutional and administrative framework: Shaping the role and practical essence of regulators in the fields of data & technology governance, competition law, ESG, international investments, trade and legal reforms Shaping the legal and economic outlook of India’s regulators, judicial system, dispute resolution mechanisms and relevant stakeholders from the private sector, to cooperate between self-regulated practices and regulatory compliances Globalising the experience of constraints and mobility in creating policy impact and then shaping the legal approaches to solving the problems related to the same In further articles, the role of soft law in other relevant international law fields, such as of outer space, technology, IP, environment and others could be discussed.

In this article, I have discussed the idea of a Pseudonymous Economy in the digital world, and its role in affecting human digital privacy. The idea is ever-evolving, and it would become intriguing to estimate its scope and reach. The concept of a Pseudonymous Economy was first coined by the angel investor and entrepreneur Balaji Srinivasan. In his own words, he defined the Pseudonymous Economy as the following in an article for The Hub: Visual Legal Analytica is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. Subscribed “The Pseudonymous Economy is the foundation for muscular classical liberalism that is capable of standing up in today’s information environment. Rather than make naive appeals to people to look past gender or race, or to not cancel or to not discriminate online, instead we make it impossible to do that by taking away that information entirely with realistic avatars and fully functional pseudonyms.” Thus, the Pseudonymous Economy builds the foundation of an ideal world, wherein it becomes impossible to discriminate against an individual’s identity, be it any, or any other factor that may be used to discriminate amongst individuals, due to the existence of pseudonyms and avatars that people may use to interact with each other without being face to face and keeping a segment of their identity private to their own selves. In a legal sense, the Pseudonymous Economy brings another layer of personal privacy to an individual’s enjoyment of life. Thus, as the Right to Privacy was recognized as a fundamental right under Article 21 of the Constitution of India of 1949, it could be a fore coming case wherein the Right to Pseudonymity could be recognised from an operative angle. Photo by 8machine _ on Unsplash Some Thoughts on the Indian Case of Privacy Right(s) Privacy has been a continuously evolving concept, which has started to overlap uncomfortably between several facets of human lives, but mainly in regards to identity and autonomy. Hence, the two terms have been quite scrutinised, quite closely by learned scholars in order to construct definitive understandings around the idea of ‘privacy’ amongst identity and autonomy, let us separate the term ‘privacy’ into various broad categories, especially information privacy, and decisional privacy. Information Privacy refers to an individual’s autonomous right to control the ability of strangers on the Internet to disseminate, gain, or use such information about themselves. In furtherance to this, Decisional Privacy, on the other hand, refers to the right to make decisions regarding family, intimate relations, and other private affairs. It is interestingly observed that the current Indian jurisprudence has only been able to recognise ‘Decisional Privacy’ as a fundamental right. The Right to Information Privacy might just be coming around. The Concept and its Dimensions Balaji, under the concept of a Pseudonymous Economy, creates a vast distinction between three terms - pseudonymity, anonymity, and reality. He went on to state the following: 1. The Pseudonym is used on sites like Reddit and Twitter 2. The Anonym is used on sites like 4chan that are designed to be anonymous 3. The Real name is used on platforms like Facebook As he went ahead to state the essential characteristics that a Pseudonymous Economy possesses, it became clear that such a concept has lively reflections worldwide. His contribution, interestingly, has paved way to refine the construct which has emerged as a phenomenon in the cyberspace. With this, he elaborates the following: 1. The phenomenon/concept is already mainstream, i.e., the basic idea is already pervasive both online (usernames) and offline (nicknames and changed names) 2. It is where the society is heading towards 3. It is not anonymity 4. It is essential to decentralization 5. It is a continuum, having degrees of pseudonymity This can be understood by seeing and observing threads and comments on microblogging and ecosystem platforms, where it becomes apparent that (for example, Twitter and Instagram), where people quarrel on trivial issues. Even if the issue is contentious, they are increasingly, due to the reach they need to converse, or the mental effect of the discourse on the platforms, or any other reasons as may persist, being reactionary in engagements. Even on LinkedIn we see similar trends, where hyped or polarised content triumphs over nuanced takes on professional, personal and business affairs. Start-ups and even some blockchain platforms, also for example are subjected to banter and ranting, via coordinated marketing campaigns, which is nothing new in the business world. The new thing which is observant is the sophisticated tendency and dissimulation of the algorithms, which drive such discourse. Yet, human bias and algorithmic bias, have to be always taken into proportionate consideration. Freedom After Speech? As a solution to the whole scenario, Balaji Srinivasan’s conception of a Pseudonymous Economy in the digital world could remain (and even become) escalating into the state of human anonymity or pseudonymity as the baseline to promote protected communication, engagement and discourse in and via digital platforms. To be more specific, a Pseudonymous Economy grants one the right of ‘Freedom After Speech.’ This means that a real person who is casually operating under a pseudonym can feel free to share their own opinions without having any apprehension of fear to his/her reputation, in regards to their real identity. In a similar way, the social media “groups” will not be able to trace such person back and threaten the safety of the individual who is using a part of technology belong to a Pseudonymous Economy. Let us remind ourselves of the proposition kept by Prof. Daniel Solvoe in his book, ‘The Digital Person,’ in which he summarises various kinds of methods that are being used to collect personal information online and how it puts the targeted individual at risk. Thus, it is safe to say that when a person operates under a pseudonym, the person is partially safe from being identified and tracked down, which reduces the chances of online stalking and retrieving confidential information that is private to you. However, when one operates while giving disclosure to their real name (original identity), it becomes easy to identify as well as tracking the person down. An example of this may be through the use of LinkedIn, the networking platform which uses real names, rather than pseudonyms. Additionally, it must also be mentioned that such techniques for pushing back against these invasive actions by way of a Pseudonymous Economy, i.e., another type of technique for ensuring electronic anonymity may be seen as direct responses to institutional digital surveillance, as was also noted by, Diana Saco, the author of Cybering Democracy. An example of this type of pseudonymity may be Satoshi Nakamoto or Corpse Husband, whom we know are real personalities, but behind pseudonyms who consistently maintain a certain kind of anonymity, along with reputation. This is because although a real person may be operating under a username in Twitter or Instagram, but the same usernames also hold reputation if being used for a prolonged period of time. Understanding the Administrative and Regulatory Dilemmas However, an essential factor of concern that has been missed in the instant mix of scenarios is the regulation of pseudonymity in case users become reactionary in groups or severally. The world is not unknown to the effect of issues-based laws not codified and regulations not developed anyways. Nevertheless, it is appropriate that even those settled norms, laws, regulations and principles, which exist in a realtime scenario, must be treated in a clinical fashion to generate better jurisprudence via courts, or via parliamentary committee briefings, to see how various stakeholders address and approach emerging legal questions. Considering Prof. Roger Brownsword’s book Law 3.0, and his views on a regulatory in the information age, it is obvious to discern that no institution (public, private) is a monolith. Still, let us assume that we should try achieving a Pseudonymous Economy via a set of laws and regulations, generating the Degrees of Pseudonymity would become the first obvious dilemma. Under this concept, it is understood that an individual cannot attain “air-tight” protection in favour of their real personality. Thus, the individual can attain some pseudonymity in some proportions, in certain dimensions of reference points (financial, governmental, economic, business, academic, etc.,) as well as in the avatars formed under a Pseudonymous Economy. This could help governments we can then track the actual person who may be responsible for the interventions. To understand this better, we must also look at the concept of the 33 Bits, which reportedly assists you in measuring the degree of pseudonymity. There are approximately seven and a half billion people on the planet, and two to the 33rd power is approximately eight billion. So, with just 33 bits of information, you can completely de-anonymize someone and track them down. In the same context, if you have ten bits of information about someone, they are inside a set of two to the tenth, or approximately a thousand people. Similarly, if you have 20 bits, that is approximately two to the twentieth – or approximately a million people. This example in some way shows that pseudonymity exists on a mere scale inside the 33 Bit range. Such Degrees of Pseudonymity, however, remain to be a varying choice to persons known to the Pseudonymous Economy. This means that there exists no concrete form of law in regards to the appropriate Degrees of Pseudonymity and the safety factor while operating under a Pseudonymous Economy. Additionally, however, as the Pseudonymous Economy is slowly legitimized after discussions like such and constant endeavours to address such challenges, it will have to be advocated properly by introducing laws which recognise some kind of safety measures. It could however, be related with the phenomenon of Soft Law (Law 3.0) as well. Maybe, we should ponder upon the questions as to how we understand human digital privacy in parallelism to human digital privity. Further Readings Diana Saco, Cybering Democracy: Public Space and the Internet 119 (University of Minnesota Press, Minnesota, 2002) Daniel J. Solvoe, The Digital Person: Technology and Privacy in the Information Age 23 (New York University Press, New York, 2006). Ken D. Kumayama, “A Right to Pseudonymity” 51 Arizona Law Review 427 (2009).

A 2-year project meets its meaningful conclusion. The ISAIL team declares that the follow-up to the 2020 Handbook on AI and International Law - the 2021 Handbook on AI and International Law is hereby published. The handbook graces the forewords contributed by Gregor Strojin & Ish Jain, FCIARb, FHKIArb, FMIArb, SFBiam, FPD, FAIADR, which has been edited by Abhivardhan, Aditi Sharma, Manohar Samal ACIArb and Mridutpal Bhattacharyya with the help of 19 contributors.

An amazing session comes to an end. I would like to extend my gratitude to His Excellency Benoit Sauveroche, Jared Jaskot and Sanjay Notani for releasing the 2020 Handbook on AI and International Law with a foreword by Mr Eugenio V Garcia. Mr Benoit was pleased to discuss about the role of AI in Indo-EU cooperation. We also thank our editors SUMAN KALANI, Kshitij Naik and Akash Manwani & our contributors Manohar Samal, Dev Tejnani, Sameer Samal, Aditi Sharma, Sanad Arora and many more for contributing to this wonderful work which is on 20+ fields of international law. You can read the book at https://lnkd.in/eW3yKzC You can watch the inaugural at https://lnkd.in/eSwjNhx