E-commerce, understood as the buying and selling of goods and services using electronic means have been on the increase over the last decade. This paper assesses the existing multilateral rules regulating e-commerce with a view of identifying their inadequacies. Although there is no specific WTO rule dedicated to regulating e-commerce, components of different agreements such as the Agreement on Trade in Services (GATS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Trade Facilitation Agreement (TFA) currently regulate e-commerce. In addition, the Information Technology Agreement (ITA), a plurilateral agreement also covers e-commerce. While several WTO rules govern trade among Members, three major rules are the most relevant for e-commerce discussions-rules on non-discrimination, rules on market access, and general exceptions to these rules, which tackle the need to regulate trade liberalization to achieve other societal goals. The GATS and the TFA are the most relevant as they have provisions directly related to the use of electronic means or the internet. Moreover, the TFA introduces new commitments on Special and Differential Agreement (SDT). However, there are several limitations to the existing rules governing e-commerce. WTO Members signed these agreements before advances in digital technologies, which renders them inadequate in addressing the complexities brought about by the digital economy. Secondly, Members designed these rules to regulate different and in some instances wider issues, meaning they only have sections or provisions, which are relevant to e-commerce, ignoring the new issues brought by digitalization. The two identified issues give a justification of Members seeking to introduce new rules governing e-commerce, either in the multilateral trading system or in Regional Trade Agreements (RTAs).

Research description

This paper is a Chapter for my PhD Thesis entitled “Trade negotiations on e-commerce: an analysis of their potential impact for micro, small and medium-size enterprises growth in African countries.” The research applies normative legal research and qualitative legal empirical research methods to analyse the potential impact of e-commerce negotiations on the growth of MSMEs in African countries, from a development studies perspective. As such the research constructs a development oriented framework for analysing e-commerce agreement, which is composed of six factors namely:  facilitating imports and export, addressing tariffs as a form of government revenue, attracting investment, preserving policy space for digital industrialisation, providing for development assistance, and providing for different rights and obligations according to development levels.

Please register here if you want to join in person or online!