→ Digital inclusion: Although digital trade has made it possible for many millions of people worldwide to link up to the global economy and to share in its bounty, many more millions are still not connected and are thus denied the opportunity to benefit from digital trade. Mindful of the persistence of the digital divide, especially in developing countries, the parties to the DEPA, in module 11, article 11.3, have agreed to “cooperate on matters relating to digital inclusion, including participation of women, rural populations, low socioeconomic groups and Indigenous Peoples in the digital economy.” The DEPA parties envisage, in module 11, article 11.1.4, that cooperation “relating to digital inclusion may be carried out through the coordination, as appropriate, of the Parties’ respective agencies, enterprises, labour unions, civil society, academic institutions and non-governmental organisations, among others.” At present, there is no similar provision in the WTO draft text. → Dispute settlement: A WTO digital trade agreement will begin as a plurilateral agreement with the expectation that, over time, it will become fully multilateral. Like other plurilateral WTO agreements, the digital trade agreement should be subject to binding WTO dispute settlement. In the absence of a dispute settlement system, disputes arising under the agreement would go unresolved and, if a dispute settlement system is not binding, then
rulings against a party could go unenforced, thereby undermining the agreement. Module 14, article 14 of the DEPA creates a dispute settlement system, but it is limited in scope by article 14A.1 to issues relating to nondiscriminatory treatment of digital products, ICT products that use cryptography, crossborder transfer of information by electronic means and location of computer facilities. A cautionary example of what WTO members should not do on dispute settlement in digital trade is the RCEP. As Leblond (2020) has pointed out, “even with respect to the non-discrimination provisions (in the RCEP), a member state could get away with discriminating against specific foreign firms since the RCEP’s dispute settlement mechanism does not apply to chapter 12. If the RCEP’s member states cannot resolve a dispute on their own through consultation, then it moves to the RCEP Joint Committee (ministerial level) for further discussion but without the power to impose any decision.” Reminiscent of the early days of the GATT, this could lead to a lot of talk and perhaps even, from time to time, some progress, but in the absence of binding rulings, it is unlikely to lead to genuine and effective dispute resolution, which will be required to ensure and enhance the flow of digital trade. A WTO digital trade agreement should refer disputes to binding WTO dispute settlement — without the qualifications in the dispute settlement provisions of the RCEP.
Financial and Technical Assistance Not even this low-hanging fruit in digital trade can be picked if WTO members do not have the capacity and the capability to pick it. The reality is, many of them do not. Clearly, financial and technical assistance from developed countries is needed by developing countries — and especially by the LDCs. Agreement to commitments by developing countries in some of these modules for the low-hanging fruit of digital trade should be conditioned on the provision of financial and technical assistance by
developed countries, ideally through international institutions that focus on development. A similar approach has been previously taken multilaterally by the members of the WTO in the Trade Facilitation Agreement (TFA),52 which was concluded at the WTO Ministerial Conference in Bali, Indonesia, in 2013, and entered into force in 2017. The innovative TFA is “the first WTO agreement in which…WTO members can determine their own implementation schedules and in which progress in implementation is explicitly linked to technical and financial capacity. In addition,
52 Trade Facilitation Agreement, supra note 43.
The Digital Decide: How to Agree on WTO Rules for Digital Trade
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