Electronic commerce has been one of the very few areas of trade law in which one can observe a willingness shared by the international community to move forward and actively engage in new rule-making. This is reflected in the current World Trade Organization (WTO) Joint Initiative on Electronic Commerce, which aims at concluding a plurilateral agreement on this topic. The Article contextualizes and explores these developments by looking at the relevant digital trade provisions in preferential trade agreements (PTAs). It does so by highlighting the legal innovation in the most advanced templates of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA), as well as those in dedicated digital economy agreements, such as the ones between the United States and Japan, and among Chile, New Zealand, and Singapore. The Article also covers the newer EU trade deals and looks at the Regional Comprehensive Economic Partnership (RCEP), the first agreement with digital trade provisions that includes China, to give a sense of the dynamic governance environment on issues of digital trade. The Article compares the PTA rule-frameworks with the WTO negotiations on electronic commerce and seeks to identify points of convergence and divergence reflected in the latest negotiation proposals tabled by WTO Members. The analytical focus here is placed on the legal substance of the future WTO deal and its viability to adequately address the practical reality of the data-driven economy.
Introduction
“Electronic commerce” or “digital trade,” as it is now more frequently referred to, is a topic that has steadily moved up on the priority list of trade negotiators. On the one hand, this interest has to do with the advanced digitization and the critical importance of data to global economies; on the other hand, it can be linked to the multiple new issues that the data-driven economy has raised, such as those in the areas of personal data protection or national security, which demand urgent regulatory responses. The multilateral forum of the World Trade Organization (WTO), despite its long-acknowledged stalemate, together with its troubles to move forward with the Doha negotiation round and to secure a working dispute settlement mechanism, has also become active on the topic. There seems to be a broad agreement among the WTO Members that it is high time to finalize an agreement on electronic commerce that can address many of the so far unresolved issues of digital trade in the body of the WTO Agreements, provide a platform for cooperation, and ensure legal certainty and equity. This Article follows and contextualizes this development and seeks to address critical questions as to the form and substance of the new WTO treaty on electronic commerce.
To engage in these inquiries, the Article first sketches the status quo of WTO rules of pertinence for electronic commerce. It then provides an in-depth analysis of the rule-making on digital trade in preferential trade agreements (PTAs), which not only compensates for the lack of developments at the WTO, but also effectively creates a new, albeit fragmented, governance framework for the data-driven economy. The analytical lens here is directed in particular to the newer and more advanced models, such as those under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA), as well as those endorsed by dedicated digital economy agreements, such as the ones between the United States and Japan through the Digital Trade Agreement (DTA) and among Chile, New Zealand, and Singapore through the Digital Economy Partnership Agreement (DEPA). The Article then covers the EU’s new generation of trade deals, in particular the currently negotiated deals with Australia and Tunisia, the post-Brexit agreement with the United Kingdom (U.K.) and the recent treaty with New Zealand. The Article also looks at the Regional Comprehensive Economic Partnership (RCEP), the first agreement with digital trade provisions that includes China, to give a sense of the dynamic governance environment on issues of digital trade. Subsequently, the Article compares these PTA rule-frameworks with the WTO negotiations on electronic commerce and seeks to identify points of convergence and divergence reflected in the latest negotiation proposals tabled by WTO Members. The analytical focus is placed on the legal substance and form of the prospective WTO deal and on its viability to adequately address the practical reality (and the future) of the data-driven economy.
Mira Burri is a Professor in International Economic and Internet Law at the University of Lucerne.
Aug 2023To read the abstract as it is posted on Social Science Research Network’s website, click here.
To read the full article published in the Georgetown Journal of International Law, click here.