Data flow-related provisions in preferential trade agreements

Abstract

Innovation in information and communication technology (ICT) has been one of the key drivers of economic globalization. As a result, the numbers of goods and services and, therefore, cross-border data ows have been increasing at an exceptional speed. The World Trade Organization (WTO) and its Members have early on realized the importance of establishing global rules by launching a work programme on electronic commerce in 1998. The WTO and, in particular, the Secretariat has been instrumental in keeping the issue on the agenda, providing shared knowledge on the evolution of ICT-induced advances and by defining concepts which also act as focal points for trade regulation. Yet, we have witnessed that regulation has been late to address the dynamic market realities and if regulation has occurred, it was driven rather by unilateral approaches with limited international cooperation. Given the absence of progress in rule-making in the WTO for some time now, the negotiators of preferential trade agreements (PTAs) have been tasked to fill the gap of writing the rule book for 21st century trade - rules that would address needs resulting from an ever more integrated and data-driven economy. The first PTA that had an electronic commerce provision was the Jordan-US PTA in 2000 and the first data flow provisions go back to the Korea-US PTA from 2007. So, these types of provisions are a rather recent phenomenon in trade agreements.