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Digital Trade Diversity: A Critical Primer on the Evolving Nature and Regulation of Intangible Import- Export Transactions
Stonebreaker, Brien
Stonebreaker, Brien
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Abstract
In the ever-evolving world trading system, digital trade is a complex, multi-faceted phenomenon that challenges traditional legal frameworks. This article explores cross-border regulation
of digital import-export transactions, arguing a central thesis summed up in one word: “diversity.” The diverse nature of digital trade and its regulation is evident from a critical evaluation of the impact of digital trade on global economies, including market expansion and supply chain efficiency, and costs such as workforce adaptation and rich-poor divisions.
There is no universally agreed upon definition of “digital trade.” This article identifies a range of possibilities, covering the methodology and subject matter of an import-export transaction. It also points out that the diversity in digital trade is apparent from the absence of a universally agreed-upon definition of the term “data,” leading to fragmented approaches to data protection and management.
Likewise, digital trade agreements (DTAs) are hardly monolithic. The article proposes they may be plausibly categorized as “nonexclusive” and “exclusive.” It highlights notable non-exclusive DTAs, such as the United States-Mexico Agreement (USMCA) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which have impressive Chapters on digital trade. The article also assesses noteworthy exclusive DTAs: the U.S.-Japan Digital Trade Agreement (USJDTA), known for its “Data Free Flow with Trust” philosophy, and the innovative Digital Economy Partnership Agreement (DEPA) designed for adaptability and scalability.
Worryingly, digital trade diversity is exacerbated by “national security” concerns. There are national security exceptions in DTAs, the invocation of which in a schismatic geopolitical climate can undermine efforts to forge a harmonious regulatory framework across borders. The article concludes with a call for renewed leadership by major powers – America, China, and India – toward some measure of unity amidst this diversity.
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Date
2024-03-29
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Publisher
Soochow Law Journal
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Keywords
digital trade, digital product, electronic commerce, diversity, digital trade agreement, digital economic partnership agreement, data localization, data flows, industrial revolution, digital economy, digital divide, digital trade barriers, digital trade policy, crossborder regulation, international trade law, national security, USMCA, CPTPP, RCEP, USDJTA, GATT, GATS, WTO, OECD, international trade law, global economy
Citation
Vol. XXI, Issue 1-2, Soochow Law Journal, p. 95 (January/July 2024).