Regulatory autonomy in digital trade agreements

Mira Burri and Kholofelo Kugler

Journal of International Economic Law, 2024, vol. 27, issue 3, 397-423

Abstract: Digital trade agreements have become integral fora for regulating cross-border digital commercial transactions, including data flows. Deeper commitments in the area of digital trade have however raised serious concerns over the erosion of countries’ regulatory autonomy, prompting the inclusion of an array of safeguards within these treaties. This article undertakes a comprehensive examination of these safeguard mechanisms, which include carve-outs, transition periods, the right to regulate, and exception clauses. By shedding light on the nuances of these safeguard provisions, as well as their complex interplay with commitments made, the article provides a deeper understanding of the evolving dynamics of digital trade governance and its implications for national regulatory autonomy. Based on existing jurisprudence and legal doctrine, the article also tests the scope of the provided policy space, the trade-offs between flexibility and legal certainty, and examines how future-proof the bounds of regulatory autonomy are, considering the highly fluid technological environment.

Date: 2024
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