The Low-Hanging Fruit of Digital Trade Despite the many brackets and blank spaces in the current consolidated text of a proposed WTO digital trade agreement, some of the pressing commercial issues relating to digital trade seem conducive to a negotiated WTO solution in the near term. Many of these issues involve the establishment of the foundational legal infrastructure needed to facilitate the day-to-day commerce of digital trade. On these issues, there seems to be common ground on which a framework of rules on digital trade can be based in the WTO. This low-hanging fruit of digital trade issues that should be addressed by the WTO in separate modules, offering a range of additional commitments over varying lengths of time, includes a long list of topics that are mostly the same as those of the DEPA modules. The WTO digital modules of possibly low-hanging fruit should include, but not be limited to, the following:
committing countries to facilitate additional trade through electronic means. An unqualified obligation to “maintain a legal framework governing domestic electronic transactions consistent with the principles of the UNCITRAL [United Nations Commission on International Trade Law] Model Law on Electronic Commerce” of 1996 — perhaps “taking into account, as appropriate, other relevant international standards” — is in section A.1(1) of the WTO consolidated negotiating text. Module 2, article 2.3 of the DEPA provides that these rules and frameworks should be consistent with the UNCITRAL Model Law on Electronic Commerce50 or the United Nations Convention on the Use of Electronic Communications in International Contracts51 of 2005, which promotes the validity and the enforceability of electronically exchanged communications and provides for even-handedness in the conduct of cross-border digital transactions.
→ Facilitation of digital trade through electronic transaction frameworks: Whatever else may be in other modules, in a WTO digital trade agreement, there should be a module
50 See https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce. 51 United Nations Convention on the Use of Electronic Communications in International Contracts, 23 November 2005 (entered into force 1 March 2013), online: UNCITRAL <https://uncitral.un.org/en/texts/ecommerce/conventions/electronic_communications>.
The Digital Decide: How to Agree on WTO Rules for Digital Trade
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