A WTO agreement on electronic commerce: an inquiry into its legal substance and viability

• Author: Mira Burri
• Position: Professor of International Economic and Internet Law, University of Lucerne, Switzerland
• Pages: 565-625

ARTICLES

A WTO AGREEMENT ON ELECTRONIC COMMERCE:

AN INQUIRY INTO ITS LEGAL SUBSTANCE AND

VIABILITY

MIRA BURRI*

* Professor of International Economic and Internet Law, University of Lucerne, Switzerland.

Contact: mira.burri@unilu.ch. The excellent research assistance by Marı´a Va´squez Callo-Mu

¨ller

and Kholofelo Kugler, as well as the support of the European Research Council, are gratefully

acknowledged. V

C 2023, Mira Burri.

ABSTRACT

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 rele-

vant 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.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566

II. WTO LAW AND ELECTRONIC COMMERCE: THE STATUS QUO . . . . 568

III. DIGITAL TRADE RULE-MAKING IN PREFERENTIAL TRADE

AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571

565

B. The Comprehensive and Progressive Agreement for Trans-

Pacific Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574

C. The United States-Mexico-Canada Agreement and the United

States-Japan Digital Trade Agreement . . . . . . . . . . . . . . . . 582

D. The Digital Economy Partnership Agreement . . . . . . . . . . . . 588

E. EU’s Approach to Digital Trade. . . . . . . . . . . . . . . . . . . . . 591

F. The Regional Comprehensive Economic Partnership . . . . . . . 596

IV. STATE OF AFFAIRS IN THE WTO NEGOTIATIONS ON ELECTRONIC

COMMERCE 599

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.......................................

599

B. Progress Made Across Issues . . . . . . . . . . . . . . . . . . . . . . . 607

C. Issues Less Likely to Be Agreed Upon: The Data Governance

Dilemma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613

D. The Legal Architecture of a WTO Electronic Commerce

Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616

V. TOWARDS A WTO AGREEMENT ON ELECTRONIC COMMERCE:

SUBSTANCE AND VIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622

I. INTRODUCTION

“Electronic commerce” or “digital trade,”

1

The Organisation for Economic Co-operation and Development (OECD) has pointed out

that, while there is no single recognized and accepted definition of digital trade, there is a

growing consensus that it encompasses digitally enabled transactions of trade in goods and

services that can either be digitally or physically delivered, and that involve consumers, firms, and

governments. Critical is that the movement of data underpins contemporary digital trade and can

also itself be traded as an asset and a means through which global value chains are organized and

services delivered. See JAVIER LÓPEZ GONZA

´LEZ & MARIE-AGNES JOUANJEAN, DIGITAL TRADE:

DEVELOPING A FRAMEWORK FOR ANALYSIS 6, 10 (2017), https://doi.org/10.1787/524c8c83-en; also

Mira Burri & Anupam Chander, What Are Digital Trade and Digital Trade Law?, 117 AJIL UNBOUND

99 (2023), https://doi:10.1017/aju.2023.14.

as it is now more fre-

quently referred to, is a topic that has steadily moved up on the priority

list of trade negotiators.

2

Since 2018, close to 40 agreements incorporating electronic commerce or digital trade

provisions have been signed. This analysis is based on a dataset of all data-relevant norms in trade

agreements (TAPED). See Mira Burri & Rodrigo Polanco, Digital Trade Provisions in Preferential

Trade Agreements: Introducing a New Dataset, 23 J. INT. ECON. L. 187 (2020). The cut-off date for the

Article’s analysis is 31 December 2022. For all data, as well as updates of the dataset, see TAPED: A

Dataset on Digital Trade Provisions, U. LUCERNE, https://unilu.ch/taped.

On the one hand, this interest has to do with

the advanced digitization and the critical importance of data to global

economies;

3

See, e.g., JAMES MANYIKA ET AL., BIG DATA: THE NEXT FRONTIER FOR INNOVATION,

COMPETITION, AND PRODUCTIVITY (2011); VIKTOR MAYER-SCHO

¨NBERGER & KENNETH CUKIER, BIG

on the other hand, it can be linked to the multiple new

1.

2.

3.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

566 [Vol. 53

https://doi.org/10.1787/11889f2a-en.

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.

4

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

5

and to secure a working dispute settlement mechanism,

6

has

also become active on the topic.

7

In the side lines of the Buenos Aires Ministerial Conference, 71 WTO members agreed to

initiate negotiations on trade-related aspects of electronic commerce. See Joint Initiative on E-

commerce, WTO, https://www.wto.org/english/tratop_e/ecom_e/joint_statement_e.htm.

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 frag-

mented, governance framework for the data-driven economy. The ana-

lytical 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

DATA: A REVOLUTION THAT WILL TRANSFORM HOW WE LIVE, WORK, AND THINK (2013); NICOLAUS

HENKE ET AL., THE AGE OF ANALYTICS: COMPETING IN A DATA-DRIVEN WORLD (2016); WORLD TRADE

ORG., WORLD TRADE REPORT 2018: THE FUTURE OF WORLD TRADE: HOW DIGITAL TECHNOLOGIES

ARE TRANSFORMING GLOBAL COMMERCE (2018) [hereinafter 2018 WORLD TRADE REPORT]; WORLD

TRADE ORG., E-COMMERCE, TRADE AND THE COVID-19 PANDEMIC (2020) [hereinafter WTO COVID-

19 REPORT]; Javier López Gonza´lez et al., Of Bytes and Trade: Quantifying the Impact of Digitalisation

on Trade, OECD TRADE POLICY PAPERS No. 273 (2023),

4. See, e.g., Mira Burri, Interfacing Privacy and Trade, 53 CASE W. RES. J. INT’L L. 35 (2021);

Anupam Chander & Paul M. Schwartz, Privacy and/or Trade, 90 U. CHI. L. REV. 49 (2023).

5. See, e.g., Robert Wolfe, First Diagnose, Then Treat: What Ails the Doha Round?, 14 WORLD TRADE

REV. 7 (2015).

6. See, e.g., Robert McDougall, The Crisis in WTO Dispute Settlement: Fixing Birth Defects to Restore

Balance, 52 J. WORLD TRADE 867 (2018).

7.

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