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Part V International Trade Law Development Beyond the WTO, Ch.29 Digital Trade

Shin-yi Peng

From: The Oxford Handbook of International Trade Law (2e) (2nd Edition)

Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 28 May 2024

Digital technology has transformed the way trade is conducted, and the need to modernize trade agreements to reflect this reality is long overdue. In terms of market access, WTO case law has confirmed that GATS disciplines and obligations apply to digital means of service delivery that have emerged since the WTO was concluded in 1994. However, judicial interpretation may not be the most appropriate method of clarifying whether the W/120 and the CPC cover certain international trade enabled by digital technologies. GATS classification/scheduling system must be reformed in light of innovative advances and trends toward a data-driven economy. In terms of domestic regulation, governments are facing dilemmas between maximizing opportunities stemming from digital trade by freeing the flow of data and managing the impact of cross-border data flows for other policy objectives, which include privacy and cybersecurity. Drawing from the experiences of the FTAs, an obvious challenge is the inherent sensitivity of interfering with other parties’ ‘digital sovereignty’. Particular attention should be paid to the soft legal nature of certain provisions and loose exceptions under the digital trade/e-commerce chapters. Furthermore, ‘special and differential treatment’ will eventually be the focal points of digital trade and data governance.

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