The Fruit at the Top of the Digital Trade Tree

the Agreement states that assistance and support should be provided to help them achieve that capacity.”53 Significantly, “A Trade Facilitation Agreement Facility (TFAF) was created at the request of developing and least-developed countries to help ensure that they receive the assistance needed to reap the full benefits of the TFA and to support the ultimate goal of full implementation of the new agreement by all WTO members.”54

Agreement on the TFA was the first time the acceptance of additional WTO obligations was specifically linked to technical assistance and capacity building. Technical assistance and capacity building are needed equally — if not more — by developing countries if new WTO rules on digital trade are to begin to eliminate the digital divide. In return for WTO commitments by developing countries to assume new obligations to liberalize digital trade, developed countries should agree to provide sufficient financial and other support for technical assistance and for capacity building. In the current WTO digital negotiations, criteria should be agreed for establishing where such help may be needed by developing countries (Bacchus and Manak 2021). (The LDCs and many other developing countries need it; China, for one, does not.) As with the TFA on digital trade, the WTO should work in concert with other international institutions to make certain the needed help is forthcoming.

Ideally, in a WTO digital trade agreement, there should be modules, too, for picking the fruit at the top of the digital trade tree — modules for each of the intractable issues relating to the international transfer of data, freedom in the flow and location of data, protections against mandatory technology transfer, safeguards on the use of personal data, competition policies, and the assurance of appropriate domestic policy space and the protection of national security in the national treatment of data. Also needed is a module that addresses how global standards will be established and employed in digital trade. The expectation of the negotiators should be that the modules for some of these issues on which consensus is harder to reach will be filled over time and, perhaps, a lengthy period of time. A WTO digital trade agreement will be only a beginning, but it can be the basis for establishing a global framework for what — it can be hoped — will one day become a global consensus on these most difficult issues. With mutual effort, it can also be, from the outset, more than merely the lowest common denominator on digital trade.

53 See www.wto.org/english/tratop_e/tradfa_e/tradfa_introduction_e.htm. 54 Ibid.