How a TPP-Style E-commerce Outcome in the WTO would Endanger the Development Dimension of the GATS Acquis (and Potentially the WTO)

Jane Kelsey

Journal of International Economic Law, 2018, vol. 21, issue 2, 273-295

Abstract: The World Trade Organization (WTO) faces a watershed. Developed country Members want to abandon the Doha round and negotiate ‘new issues’, notably electronic commerce, as part of a broader US-led strategy to rewrite the global trade rules for the 21st century. Developing countries insist the Doha round be concluded before considering new issues and most reject the e-commerce agenda as foreclosing their options for digital development. This standoff dominated the MC11. The new e-commerce agenda has its genesis in the Trans-Pacific Partnership. Three factors complicate moves to export it to the WTO. First, those rules are blunt instruments designed to protect the first mover status and oligopolistic power of Big Tech. Second, they lack any development flexibilities or obligations. Third, their application to major developing country competitors and the potentially lucrative markets of larger developing countries requires multilateralization through the WTO, but that will be a highly contested process. That contest is now playing out through the plurilateral process announced by the e-commerce proponents during the MC11. The proposals assume a major expansion of Members’ commitments under the General Agreement on Trade in Services (GATS). Favourable interpretations of sectoral classifications, modes of trading services, and the application of technological neutrality to historical commitments would override the original GATS acquis that ensures developing countries can control their exposure, and seriously diminish their regulatory autonomy to maximize the opportunities of the digital economy and minimize the risks. Such an agenda could deepen the crisis at the WTO.

Date: 2018
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