The World Trade Organization (WTO) is in need of reform, including new rules. While there is not yet a comprehensive reform agenda for the WTO, developing e-commerce rules should be seen as part of WTO reform in two respects.
First, the development of such rules will allow the WTO to demonstrate a capacity to remain relevant to the challenges and opportunities governing international trade today. Second, many of the issues that need to be addressed in a comprehensive outcome on e-commerce would contribute to broader WTO reform.
This paper proposes, among other things, that the WTO become a platform that can enable increased regulatory cooperation and encourage good regulatory practice. Such a result is needed to overcome many of the current barriers to e-commerce. Success in the e-commerce context would also position the WTO to better address regulatory barriers to trade more broadly.
In the context of the WTO e-commerce discussions, there is no agreement amongst WTO members as to what aspects of digital trade merit attention. The 2019 Joint Statement by those WTO members participating in the e-commerce discussions refers to the need for negotiations on the “trade-related aspects of e-commerce.” The 1998 WTO E-commerce Working Party defined e-commerce as “the production,
distribution, marketing, sale or delivery of goods and services by electronic means.”
But the Working Party also stated that this definition of e-commerce was “exclusively for the purposes for the work programme,” revealing a clear intention that this definition would not bind or limit the potential scope of a WTO negotiation on ecommerce. In addition, there is no agreement as to whether the negotiations should be focused on goods purchased online or also include digital services. With respect to the development of WTO rules that can maximize the opportunities of e-commerce and cross-border data flows, this paper favors a broad scope, consistent with the approach taken by the E15 Expert Group on the Digital Economy. The expert group’s report used the term digital trade instead of e-commerce. The term digital trade, as applied in this paper, refers to “use of the internet to search, purchase, sell and deliver a good or service across borders as well as how the internet and crossborder data flows enable international trade.”
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