Lysiane Tendil (Université Montpellier I) and Christophe Boiral have posted Government Restrictions on Artificial Intelligence Hardware: Export Controls, Extraterritoriality and Legal Fragmentation of the Value Chain (2018-2026) on SSRN. Here is the abstract:
This article examines the emergence, over the period 2018-2026, of a fragmented legal regime governing exports of critical hardware for artificial intelligence: advanced chips, high-bandwidth memory, lithography equipment, data-centre infrastructure, robotics and drones — as well as, by recent extension, commercial AI models themselves. This regime has crystallised through the coordinated but unharmonised proliferation of state restrictions: U.S. Bureau of Industry and Security regulations of October 2022, October 2023 and December 2024; the AI Diffusion Rule promulgated by the Biden administration on 13 January 2025 and rescinded by the Trump administration on 13 May 2025; Dutch controls on advanced DUV lithography (June 2023, extended September 2024); Japanese METI controls on twenty-three categories of equipment (July 2023); Chinese countermeasures on critical materials (gallium-germanium in August 2023, graphite in December 2023, U.S.-targeted bans in December 2024, rare earths in April 2025). The most recent event — the Commerce Department directive signed by Secretary Howard Lutnick on 12-13 June 2026, ordering Anthropic to suspend access to its Claude Fable 5 and Mythos 5 models for all foreign nationals — constitutes the first nominative export-control directive issued by U.S. authorities to a designated supplier concerning a commercial AI model already placed on the market, and marks the reemergence, on a case-by-case basis, of the model-weights control concept initially borne by the rescinded AI Diffusion Rule. The analysis identifies the extraterritorial reach of U.S. law — anchored in the Foreign Direct Product Rule and the qualification of U.S. Persons — as the structuring driver of this fragmentation, and examines its compatibility with Article XXI of the GATT in light of the WTO panel jurisprudence in DS512 (Russia — Traffic in Transit, 5 April 2019). We conclude with recommendations addressed to European regulators, in the context of the articulation between Regulation (EU) 2021/821 on dual-use items, Regulation (EU) 2023/1781 on semiconductors (EU Chips Act) and Regulation (EU) 2023/2675 establishing the Anti-Coercion Instrument.
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