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The Regulation of Digital Trade in the TPP: Trade Rules for the Digital Age

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Paradigm Shift in International Economic Law Rule-Making (ODS 2017)

Part of the book series: Economics, Law, and Institutions in Asia Pacific ((ELIAP))

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Abstract

With the rapid development of the internet, electronic commerce is also gaining importance in international trade. However, the rules governing digital trade is still largely lacking. While WTO Members have been discussing the regulation of electronic commerce since the last century, little progress has been made. Instead, most of the progresses are made in various free trade agreements, especially those sponsored by the United States. This article starts with a review of the efforts to regulate e-commerce in the WTO, as well as what the pre-TPP US FTAs have achieved so far, followed by a critical appraisal of the achievements and shortcomings of the e-commerce chapter in the TPP. It is hoped that, by reviewing the evolution of the regulation of e-commerce from the WTO to the TPP, we can learn some lessons on how the rules are being shaped, as well as how it might evolve in the future.

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Notes

  1. 1.

    USTR, United States to Negotiate Participation in Trans-Pacific Strategic Economic Partnership, Sept 2008, available at <https://ustr.gov/archive/assets/World_Regions/Southeast_Asia_Pacific/Trans-Pacific_Partnership_Agreement/Fact_Sheets/asset_upload_file602_15133.pdf>

  2. 2.

    Trans-Pacific Partnership Ministers’ Statement, Oct 2015, available at <https://ustr.gov/about-us/policy-offices/press-office/press-releases/2015/october/trans-pacific-partnership-ministers>

  3. 3.

    Work Programme on Electronic Commerce Dedicated Discussions Under the Auspices of the General Council Report to the 21 November 2013 meeting of the General Council, WT/GC/W/676, 11 November 2013.

  4. 4.

    Henry Gao, ‘Commentary on Telecommunication Services’, in Rüdiger Wolfrum and Peter-Tobias Stoll (eds), Max Planck Commentaries On World Trade Law, Volume VI: “WTO—Trade In Services”, (Brill (Martinus Nijhoff) Publishers, 2008) paras 41–54.

  5. 5.

    Part of the discussions below are based on Henry Gao, ‘Can WTO Law Keep Up with the Internet?’ Proceedings of the 104th Annual Meeting of the American Society of International Law (American Society of International Law, 2016).

  6. 6.

    For a list of the FTAs with e-commerce chapters, see the Annex. Note that e-commerce is addressed in the Jordan FTA not as a chapter but a joint-statement.

  7. 7.

    For an overview of the e-commerce chapters in pre-TPP US FTAs, see Sacha Wunsch-Vincent and Arno Hold, ‘Towards Coherent Rules for Digital Trade: Building on Efforts in Multilateral versus Preferential Trade Negotiations’, in Mira Burri and Thomas Cottier (eds) Trade Governance in the Digital Age: World Trade Forum (Cambridge University Press, 2012) 193.

  8. 8.

    See e.g., Article 15.4 of the Colombia FTA.

  9. 9.

    S/L/74, 27 July 1999.

  10. 10.

    KORUS, Article 15.5.

  11. 11.

    KORUS, Article 15.8.

  12. 12.

    Articles 5–8, 11.

  13. 13.

    Articles 3 & 6.

  14. 14.

    The Model Law on Electronic Commerce has been adopted by 66 States including the US while the Model Law on Electronic Signatures has been adopted by 32 states.

  15. 15.

    Article 14.5.

  16. 16.

    Article 14.7 & 14.8.

  17. 17.

    TPP Countries to Discuss Australian Alternative to Data-Flow Proposal, Inside US Trade (2012).

Author information

Authors and Affiliations

  1. School of Law, Singapore Management University, Singapore, Singapore

    Henry Gao

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  1. Henry Gao
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Correspondence to Henry Gao .

Editor information

Editors and Affiliations

  1. Faculty of Law, Chinese University of Hong Kong, Shatin, New Territories, Hong Kong

    Julien Chaisse

  2. Singapore Management University, Singapore, Singapore

    Henry Gao

  3. Judicial Yuan, Justices of the Constitutional Court, Taipei, Taiwan

    Chang-fa Lo

Annex: List of Pre-TPP US FTAs with E-commerce Chapters

Annex: List of Pre-TPP US FTAs with E-commerce Chapters

  • Australia: Australia—United States Free Trade Agreement (2004)

  • Chile: Chile—United States Free Trade Agreement (2004)

  • Singapore: Singapore—United States Free Trade Agreement (2004)

  • Bahrain: Bahrain—United States Free Trade Agreement (2006)

  • Morocco: Morocco—United States Free Trade Agreement (2006)

  • Oman: Oman—United States Free Trade Agreement (2006)

  • Peru: Peru—United States Trade Promotion Agreement (2007)

  • Dominican Republic—Central America FTA (2005)

  • Panama: Panama—United States Trade Promotion Agreement (2012)

  • Colombia: United States—Colombia Free Trade Agreement (2012)

  • South Korea: United States—Republic of Korea Free Trade Agreement (2012)

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Gao, H. (2017). The Regulation of Digital Trade in the TPP: Trade Rules for the Digital Age. In: Chaisse, J., Gao, H., Lo, Cf. (eds) Paradigm Shift in International Economic Law Rule-Making. ODS 2017. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-10-6731-0_20

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  • DOI: https://doi.org/10.1007/978-981-10-6731-0_20

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