Abstract

What role does law, especially international law, play in the emergence of continued innovation in global markets? Historically, what role has it played and, normatively, what role should it play today and in the future? While these questions have preoccupied scholars over time and across many fields – economics, law, international relations, sociology, and interdisciplinary versions of these – this paper is limited to scholarship on law and global digital markets.

This paper is focused on the history of international commercial law promulgated to assist emerging global electronic and digital markets. This paper offers the history of international commercial law as a counter-narrative to conventional scholarship on digital markets, which mostly views regulation as inhibiting innovation in digital markets and undermining technological progress in the digitalization of globalized markets. Conventional scholarship has influenced US regulation of the tech industry. This law is intentionally scant “precisely because of [the] fear that attempts to interfere with tech companies’ operations would undermine their innovative capacity.” The tech industry has thrived, and the success of Silicon Valley is attributed to this hands-off deregulatory approach. Unquestioned acceptance of the negative implications of regulation on technical innovation in digital markets has, however, begun to falter.

Keywords: international commercial law, regulation, digital markets, technological progress