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Jane Kelsey on E - commerce - The development implications of 'future proofing' global trade rules for GAFA

The World Trade Or ganization (WTO) General Council established a Work Programme on Electronic Commerce in September 1998 t o examine all trade - related issues arising from electronic commerce , taking into account the economic, financial, and development needs of developing countries. 1 Consistent with Article III.2 of the Marrakesh Agreement, 2 electronic commerce was defined in terms of its trade characteristics, with discussions to be conducted through the bodies responsible for the relevant WTO instruments 3 and supplemented by ad hocdedicated discussions at the General Council. The work programme identified many critical issues, especially on trade in services, but languished in recent years. In 2016, the issue of electronic commerce was brought to life with gusto as the US, Japan and the European Union initiated moves that were clearly designed to secure a mandate for formal negotiations at the 11th WTO Ministerial Conference (MC11) in Buenos Aires, Argentina. Their proposals go far beyond traditional notions of trade and would see the WTO adopt binding and enforceable rules that restrict how governments can regulate the digital domain. This paper first examines the drivers behind the push for electronic commerce to become the major ‘new issue’ adopted in a post - Doha round WTO. It th en assesses the development implications of the new e - commerce agenda for the WTO acquis, with particular reference to the General Agreement on Trade in Services (GATS). Four interrelated factors underpin this new focus on electronic commerce. The first is the pre - eminence of the mega - corporations from Silicon Valley, symbolised by the acronym GAFA (Google, Amazon, Facebook, Apple), who by 2010 had displaced the old industrial giants as the world’s largest corporations. With their rise in corporate power came greatly enhanced political influence in the US Congress and in the Office of the US Trade Representative (USTR) . The industry’s wish-list of global rules became the US agenda in the relevant negotiating forums. The second factor is the growing threat posed by China to the dominance that both GAFA and the US had established over the digital economy, as China refocuses its domestic economy on services and technology and expands internationally through the One Belt One Road initiative and its digital component led by Alibaba. Other countries in the global South are also exploring strategies to close the digital divide and catch- up through digital industrialisation. That strategy commonly includes technology transfer, support for domestic start-ups and attracting joint venture investments, while balancing their social, employment and economic development objectives.