Open Digital Trade: Background Paper (DC on Trade)

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Background Paper

Dynamic Coalition on Trade & the Internet [Full Report]

Preface 

Overview of Digital Trade Frameworks 

2.1 General Agreement on Tariffs and Trade (GATT) 

2.2 General Agreement on Trade in Services (GATS) 

2.3 Information Technology Agreement (ITA)

2.4 Developments from the Doha Round 

2.5 Digital Trade and Dispute Settlement at the WTO 

2.6 Declaration on Global Electronic Commerce 

2.7 Trade-Related Aspects of Intellectual Property Rights (TRIPS) 

2.8 Digital Trade and WTO: Present Status 

Plurilateral and Mega-regional Trade Agreements 

3.1 Trans-Pacific Partnership (TPP) 

3.2 Trade in Services Agreement (TiSA) 

3.3 Transatlantic Trade and Investment Partnership (TTIP) 

3.4 North-American Free Trade Agreement (NAFTA) 

3.5 The Regional Comprehensive Economic Partnership (RCEP) 

4. Digital Trade and Internet Governance 

4.1 Paperless Trading 

4.2 Custom Duties 

4.3 Cross-border Data Flows and Data Localization 

4.4 Intellectual Property Rights 

4.5 Unsolicited Emails and Malware 

4.6 Prohibition on Source Code Disclosure 

4.7 Access: Net Neutrality 

4.8 Online Protection of Personal Information 

Part IV: Transparency and Openness in Trade Negotiations 

Rethinking Internet and Trade 

Brussels Declaration on Trade and Internet 

Part IV: Transparency and Openness in Trade Negotiations 

Rethinking Internet and Trade 

Brussels Declaration on Trade and Internet

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LIST OF ABBREVIATIONS

APEC Asia-Pacific Economic Cooperation

EU European Union

FTAs free trade agreements

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

GDP gross domestic product

ICANN Internet Corporation for Assigned Names and Numbers

IP Internet Protocol

IPRs intellectual property rights

ISPs Internet service providers

IT information technology

ITA Information Technology Agreement

MNEs multinational enterprises

OECD Organisation for Economic Co-operation and Development

PCs personal computers

RCEP Regional Comprehensive Economic Partnership

SMEs small and medium enterprises

TBT Technical Barriers to Trade

TiSA Trade in Services Agreement

TRIPS Trade Related Intellectual Property Rights

TPP Trans Pacific Partnership

TTIP Transatlantic Trade and Investment Partnership

UNCITRAL United Nations Commission on International Trade Law

UPICC Uniform Principles of International Commercial Contracts

US United States

WIPO World Intellectual Property Organization

WTO World Trade Organization

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UNSPSC United Nations

UNSPSC United Nations Standard Products and Services Code

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1. Preface

Proliferation of digital technologies and cross-border flow of information has created social, economic

and cultural growth. Nations now face the challenge of ensuring that the opportunities and benefits driven

by Internet and communications technologies (ICT) are shared by all. With the development of national

standards and the emergence of digital players transforming production processes and industries, there is

increased push for centrally controlled regulatory environment for the Internet and Internet related

services. This is driven by both economic and strategic interests.

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The pace of ICT adoption and its impact on national economies has raised concerns about the legitimacy

of control and civic participation. Issues that were considered purely technical have transformed into

areas for strategic governance and tools for foreign policy. While the Internet was conceived as a

technology that would defy national borders, the historical imbalance of the United States' domination of

ICTs and growing fears of surveillance has created the political momentum for increased state control on

regulatory aspects of the Internet.

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The evolution of the Internet from a research network to a platform for commerce presents challenges for

trade law. The World Trade Organization (WTO) agreements were developed more than two decades ago

and are inadequate in dealing with complex issues of present day digital economy. While the role of

nation states in regulating physical goods and services has been established in global trade order, the role

of nation states with respect to cross-border flow of information is less understood.

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This is partly due to the novelty of digital technologies and the associated unorthodox processes that have

evolved in the context of its governance. Existing Internet governance (IG) frameworks—many of which

are still evolving—are led by multistakeholder decision-making where state and non-state actors address

issues through open and transparent arrangements of rulemaking. This is in contrast to conventional

regulatory domains which feature state-led processes for the development of global norms and treaties.

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In the absence of global binding norms on Internet related issues, and in light of fears of rising 'digital

protectionism', states are are seeking to draw up rules and frameworks for regulation of the digital

economy through conventional mechanisms for international cooperation such as trade agreements.

Although trade and Internet governance appear to be disconnected, with the growing significance of the

Internet for international trade, a tenuous and complex relationship between the fields is emerging that

will have repercussions on the development of the digital economy.

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Direct or indirect inclusion of contemporary issues related to the Internet are being included in plurilateral

and multilateral arrangements with the aim to counter restrictive measures on data flows that hinder cross-

border trade. For example, the Electronic Commerce Chapter of the Trans-Pacific Partnership Agreement

(TPP) contains provisions that ban data localization. Such provisions are accompanied by other legal

obligations on cybersecurity, spam and intellectual property. Similar provisions are also being proposed in

other ongoing plurilateral trade negotiations including the the Transatlantic Trade and Investment

Partnership (TTIP), the Trade in Services Agreement (TISA), the Regional Comprehensive Economic

Partnership (RCEP) and most recently the North American Free Trade Agreement (NAFTA ).

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Any framework or rules evolving out of these agreements will have a deep impact and Internet

governance processes and policymaking. Regulating commercial aspects of Internet through trade

agreements entails choices that will significantly influence and bear repercussions for critical aspects of

the emerging digital economy. It requires coming up with global solutions that strike a balance between

trade liberalization and preservation of fundamental goals of Internet governance such as openness,

transparency and protection of human rights. It would also necessitate resolving differences in political

and ideological stance on issues like privacy, innovation and democratic standard setting.

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It is important to understand the complexities and risks involved in aligning the disciplines of trade policy

and Internet governance. Despite recent initiatives, it is important to take a step back and question

whether trade agreements should be concerned with setting standards for Internet technologies or on

issues such as national security and privacy. Going forward policymakers and governments need to

understand how the application of international trade law could be better aligned with values of Internet

governance such as openness and inclusion.

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With the aim of bringing in a multistakeholder approach to application of international trade civil society,

private sector, technical and academic community members have come together to form the Dynamic

Coalition on Trade and the Internet (DCTI). The Dynamic Coalition was formally approved by the

Internet Governance Forum (IGF) Secretariat in February, 2017 and the inaugural meeting will be held in

Geneva in December 2017. The Dynamic Coalition aims to serve as a liaison between representatives

from trade institutions and government delegations and the broader IGF community. The Coalition been

established to address the lack of transparency in international trade negotiations and domestic

consultation processes and provide recommendations about how Internet public policy can be developed

in a transparent and inclusive way. The Coalition will also serve as an interface for the exchange of

information and best practices on Internet public policy issues.

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This paper is a resource developed for the DCTI and summarizing the issues, concerns and recent

developments on trade and digital rights. The paper is divided in four parts.

Part I provides a background to the evolution of trade frameworks in the context of digital trade agenda.

This section will draw on history of intellectual property trade frameworks and recent attempts to

introduce e-commerce related issues in the digital trade agenda.

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In Part II we cover the trade negotiations that have included digital issues or are currently being

negotiated. We delve into the status of negotiations including the areas where countries have reached

consensus or others where negotiations face inability to pass muster and what experts have been saying

on these issues.

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Part III we address some of the emerging themes and issues in the context of the digital economy that are

increasingly being included in trade agreements. We analyze these provisions based on the implications

for Internet governance and on consumers and human rights online.

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In Part IV we highlight some of the procedural inconsistencies between the multistakeholder approach

that is common to Internet governance. We provide a broad-range of recommendations for introducing

transparency and opening up digital trade negotiation processes by by governments for the participation

by affected stakeholders and NGOs. The recommendations seek to establish a framework for participation

of diverse stakeholders when developing rules through regional and mega-regional trade treaties.

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I hope we have pdf format of…

I hope we have pdf format of this. Really appreciate making the whole report for the paper works on trading. That is transparency done right.

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