The chapter analyses how trade agreements balance liberalisation of digital trade with cybersecurity concerns. The chapter identifies the strengths, weaknesses, and ambiguities facing digital trade regulation in these agreements. As a way to address the tension between international trade law and cybersecurity, it examines security exception clauses in different trade agreements. It also analyses the efforts found in recent regional trade agreements to direct state parties to have regard to international standards concerning cybersecurity issues. It concludes that harmonisation of such standards would suggest the possibility of a greater coherence in cybersecurity governance.

The world of digital commerce is relatively new. It is a by-product of an information technology revolution that started with the invention of the integrated circuit, carried forward with advances in computing and unleashed with the creation of the internet. Digital commerce is familiar in some respects and dramatically different in others from the world of trade that preceded it. It poses special problems of privacy, unwanted communication, and new kinds of competition, stemming from the flow of data across borders. It gave rise to the need to devise rules for its nurture and management. It makes the most sense for the rules to be global, as without interference from governments, e-commerce is global. It creates opportunities as never experienced before for innovation and for individual and small business involvement in international commerce. This is the story of the evolution of the process of rule-making in the age of digital commerce.

This chapter discusses the tension and synthesis between uniform law and legal pluralism. This is done by highlighting aspects of the production and circulation of uniform commercial law, using the example of international sales law and the law related to electronic transactions. It is argued that uniform law is of increasing importance in the production and circulation of legal models. Given so, it is desirable to make the uniform legislative process more efficient and effective than it currently is. Solutions are proffered.

This chapter conducts an analysis of the GATS disciplines and their applicability to digital services trade. The reader is thereby provided with an overview of the relevant GATS obligations and how they apply to the supply of digital services. The distinction between the GATS’ general obligations and its obligations subject to specific commitments is explained and the implications for digital services trade elaborated upon. The chapter also sets out how the digital supply of services that can also be supplied offline impacts the likeness analysis in various GATS obligations. The most relevant obligations for digital services trade are the most-favoured nation treatment obligation, the market access obligation and the national treatment obligation. The chapter discusses the potential overlap between the latter two obligations and how to interpret WTO Members’ Services Schedules to understand their commitments. The chapter additionally addresses the applicability of the Annex on Telecommunications, the Reference Paper on Basic Telecommunications and the Understanding on Commitments in Financial Services to digital services trade. Finally, the chapter discusses the justification grounds in the GATS and how they relate to digital services.

This chapter elaborates on the relationship between digital services and the GATS. First, the characteristics of the GATS are explained, including the recognised four modes to supply services, the specific commitments WTO Members have included in their Services Schedules and how this impacts the Members’ obligations under this agreement. Digital services are not explicitly referred to in the GATS, but through an analysis of the scope of the GATS, this chapter explains why measures that affect digital services trade are covered by the GATS. Moreover, electronic delivery of services fits within the four modes of supply as recognised within the GATS. The chapter also elaborates on the principle of technological neutrality and how it applies to the GATS. Finally, the chapter discusses the work that has been undertaken by WTO Members in the context of the Work Programme on Electronic Commerce, which was established in 1998. The lack of substantive progress in the context of this Work Programme illustrates the divergent positions of WTO Members on digital issues.

This chapter analyses the consistency of the barriers to services trade that were identified in Chapter 3 with the GATS obligations as elaborated upon in Chapter 6. First, the chapter addresses restrictions to cross-border data flows, using two case studies: Russia’s amended Law on Personal Data and the EU’s General Data Protection Regulation. Second, the barrier of web filtering and content control is assessed under the applicable GATS obligations, using the case study of China’s Great Firewall. Third, the lack of access to infrastructure as an obstacle to digital services trade is considered using the case study of the United States’ Restoring Internet Freedom Order. Finally, a briefer analysis of the GATS consistency is provided for bans on cross-border supply through electronic means, digital taxes and restrictions on intellectual property rights. For each of these barriers, the services at issue are classified, the different GATS obligations are applied and the potential justification grounds are considered.

This chapter elaborates on the impact of digitisation on international trade. It explains both the benefits of digitisation and the issues that the digital economy faces. Digitisation has allowed for unprecedented supply of goods and services across borders and has removed many practical barriers to the cross-border supply of services. However, the positive impact of digitisation on the global economy has not reached all countries to the same extent. The ‘digital divide’ entails that several developing countries at the moment do not sufficiently benefit from the changes brought about by digitisation. The chapter further elaborates on the impact of digitisation for services trade specifically. In order to set the scene for the rest of the book, the concept of digital services is contextualized and explained, providing the reader with a clear understanding of the subject of the legal analysis that will be conducted in the rest of the book.

This chapter discusses the classification of digital services using the GATS services classification system. The chapter first elaborates on how services are classified under the GATS and the role of the evolutionary approach, the customary rules of treaty interpretation, the existence of integrated services and the focus on outputs. The chapter subsequently distinguishes between three classification methodologies (the textual approach, the component-based approach and the teleological approach) and explains why the technological approach to services classification is preferable. The teleological approach is then applied to examples of both digital infrastructure services and digitally enabled services. The chapter elaborates on the distinction between transmission and content, the confusion on how to classify ‘new’ services and the misplaced focus on the service suppliers’ revenue source. This chapter thereby proposes a clear and consistent classification methodology that allows for straightforward classification of digital services.

Building on the observations in chapter 8, this chapter focuses on six regional trade agreements (RTAs) that contain extensive e-commerce chapters. This chapter first compares the definitions included in the e-commerce chapters of the selected RTAs, together with their approach to the principle of technological neutrality and ‘new services’. The chapter subsequently compares the architectural features and scope of the selected RTAs. Finally, the chapter analyses the consistency of the barriers to digital services trade as identified in chapter 3 with the obligations that parties have committed to in these RTAs. For each of these barriers and for each of the selected RTAs, the relevant obligations are identified and applied, taking account of whether they go further than what the parties agreed to at the WTO. The chapter thereby provides the reader with insights on what extensive e-commerce RTAs contribute to WTO Members’ obligations and commitments at the multilateral level.

This chapter maps the evolution of e-commerce-related provisions in regional trade agreements (RTAs). In order to allow for exhaustive mapping, this chapter uses the technique of term-frequency analysis, which identifies specified e-commerce-related terms in a corpus of 105 RTAs with e-commerce provisions. The chapter first provides general observations on e-commerce RTAs and a historical perspective on the inclusion of e-commerce provisions in RTAs. Subsequently, different groups of e-commerce provisions are identified, related to scope, trade facilitation and cooperation, specific barriers to digital trade, data flows and policy objectives. For each of these groups, their inclusion in the 105 RTAs is mapped. Finally, the chapter provides insights into the presence of e-commerce provisions in RTAs based on the parties’ geographical location and income level. This provides the reader with a clear overview of the extensiveness of the e-commerce provisions in different RTAs, which countries have concluded most e-commerce RTAs and the evolution of different types of e-commerce provisions over time.

Having defined ‘digital services’ for the purpose of the book, this chapter identifies different barriers to digital services trade. First, the chapter explains how general barriers to trade in services also impact trade in digital services. The most prominent example of such a barrier is regulatory divergence. Second, the chapter elaborates on restrictions on cross-border data flows and the high impact they have on any service that is supplied electronically. Data is omnipresent in the digital economy and restricting data flows has a far-reaching impact on both digital and offline trade. Data localization requirements are further discussed as the quintessential example of barriers to data flows. Third, the chapter elaborates on web filtering and content control, which effectively prevent certain service providers from reaching consumers in certain markets. Fourth, a brief overview is provided of other barriers to digital services trade, including limited access to infrastructure, bans on the cross-border supply of services through electronic means, digital taxes and restrictions on intellectual property rights.

This chapter explains the phenomenon of digitisation and the terminology that comes with it. It provides an insight into how digitisation has changed the way in which business is conducted. The chapter elaborates on the different kinds of digital platforms and how they have allowed for the creation of new business models. The term ‘digital products’ is explained and the chapter elaborates on the classification debate surrounding this term. WTO Members have taken divergent positions on whether to classify digital products as either goods or services. This chapter explains the EU-US juxtaposition in this debate and provides insights into the best way to approach the classification of these products. The chapter additionally elaborates on data flows and their increased prevalence in international trade. The relevance of data flows to the assessment of digital services trade is explained. Finally, the chapter provides a brief introduction into the functioning of the Internet, to provide readers with an understanding of the technical background to the phenomenon of ‘digitisation’.

The chapter provides an overview of the current and emerging trends in disruptive technologies and discusses the sweeping effects of digitization at different levels of the economy. The chapters focus then shifts to the effects of digitization on trade and explores the implications for trade policy. In order to understand what needs to be changed or at least calibrated in existing external trade policies, we need to know what we have in terms of existing regulatory frameworks – both at the international and at the regional and bilateral levels. It is the objective of the chapter’s third part to attend to this need as well as to show how selected countries have responded to the digital challenge and formulated distinct or less distinct responses in their respective external trade policies. Here, in particular, an understanding of the digital agenda of the United States, as well as of the new templates for electronic commerce, is essential and the chapter conveys this knowledge by focusing on the most advanced model so far - that of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The chapter goes on to contextualize and assess the impact of the existing legal frameworks, as shaped by preferential trade agreements.

In recent years, the negotiation of various trade agreements, such as the TPP, TTIP and CETA, has been accompanied by a large public backlash. Are we observing a paradigm shift in public perception of world trade or just temporary shifts in public support for the global economic order that oscillate around a more or less steady level? This chapter provides an overview of the major determinants of support for or opposition against PTAs and discusses how much room to maneuver policy makers have in designing such agreements. Furthermore, we discuss what policy makers can do to increase support for such agreements. We thereby focus on framing strategies and provide an analysis of which types of arguments are conducive to increase support for PTAs and how individuals process such information. This allows us to construct different future scenarios for policy makers to better align the negotiation and design of future trade agreements with the demand of their constituencies.