Comparative Study on Digital Trade Agreements and the World Trade Organization Norms

학위논문(석사) -- 서울대학교대학원 : 행정대학원 글로벌행정전공, 2022. 8. 구민교.WTO체제가 지난 30여년간 쌓은 자유무역의 경험과 관행은 국제 무역에서 꽤 잘 적용되어왔고 자유무역규범 확산에 기여한 것은 명백하다. WTO는 다양한 무역분야에서 98%를 차지하는 최다수의 회원국을 보유하면서 자유무역의 다자적 규범을 창설하고, 분쟁해결체계를 도입했다는 점에서 그 중요성이 있다. 그러나 4차 산업혁명에 따른 정보통신기술의 발달과 코로나19 전염병 확산 상황에서의 디지털 무역의 증가는 디지털 분야에서의 새로운 규범의 필요성을 제기하였고, 디지털 분야에서 WTO가 제대로 작동하지 못하면서 개별 국가들은 자국의 이익을 반영한 국제적 표준을 선제적으로 형성하기 위해 노력하게 되었다. 이 연구는 결국 디지털 무역분야가 아직 충분히 발전하지 않았고 여전히 규범을 형성 중이라는 사실에 주목하여, 현재 미국과 중국, 그리고 제3국이 형성중인 디지털 무역규범이 기존 다자무역 규범인 WTO 규범과 공존할 수 있는지의 문제를 제기한다. 특히, 디지털 무역분야에서 대표적인 규범창설자 역할을 기대하고 있는 미국은 시장개방을 중시하는 자유무역에 치우쳐있는 반면, 중국은 자국 유치산업을 보호하고자 하는 보호무역적인 입장을 보이고 있다. 이는 미국과 중국의 국내 정책과 국내법과 더불어 양자가 진행해온 각각의 자유무역협정에 반영되어 있다. 특히 미국이 밑그림을 그렸던 두 협정인 서비스무역협정(Trade in Service Agreement)과 포괄적점진적 환태평양경제동반자협정(Comprehensive and Progressive Agreement for Trans-Pacific Partnership)은 민간분야의 자율성을 강조하면서 자유무역을 강조하는 WTO의 비차별주의, 시장접근성 강화, 공정경쟁과 투명성 원칙 등을 담고 있다. 반면, 중국의 경우는 반대로 역내 포괄적 경제동반자협정(the Regional Comprehensive Economic Partnership)에서 WTO의 자유무역규범을 원론적인 수준에서 제시하거나, 비차별원칙을 의도적으로 배제함으로써 보호주의적인 관점을 담아냈다. 한편, 미국과 중국 주도의 다자무역협정에서 벗어나, 뉴질랜드, 싱가포르, 칠레 3국은 독자적인 디지털경제동반자협정(DEPA)을 체결하였다. 이 협정은 대상범위는 확대하고 보다 포괄적인 자유무역규범을 제시하면서 다양한 디지털 관련 주제에 신속하게 대응할 수 있는 소통창구를 마련했다는 점에서 의미가 있다. 그러나 그 회원국으로 미국이나 중국을 포섭하지 못한다면 협정의 영향력은 기대 이하가 될 가능성이 있고, 자유무역의 주요 원칙인 비차별원칙이 분쟁해결의 주제에서 제외됨은 그 구속력을 약화시키는 원인이 된다. 그러나 이렇게 대치되는 미국과 중국의 무역정책기조는 단기적일 것으로 보이며, 중국 디지털 유치산업이 충분히 성장하여 시장확대를 노리는 장기에는 중국 역시 디지털 자유무역으로 선회할 가능성이 보이므로 장기적인 자유무역 협력이 기대된다. 즉, 장기적으로 디지털 산업이 충분히 성장하게 된 이후엔 개별국가들이 디지털 무역에서 이익 조정을 통해 비차별, 시장접근성, 공정경쟁, 투명성 등의 자유무역 규범에 대한 공감대를 형성하게 될 것이다. 그 결과 다자간 자유무역 규범이라 할 수 있는 기존의 WTO 체제는 디지털 자유무역 규범의 버팀목 역할을 하게 될 것이다. 특히 WTO 분쟁해결기구가 개별 국가들의 자유무역 규범 이행에 구속력을 부여하는 역할을 담당해왔음을 고려할 때, 디지털 무역규범이 WTO 체제를 활용하여 자유무역규범을 공고히 하는 경우, 새로운 체제를 구축하는 비용은 극소화되고 기존 분쟁해결 인프라를 활용하는 이익은 극대화할 수 있을 것으로 보인다. 한편, WTO 역시 새로운 규범에 맞춰 보다 유연한 태도를 취해야 할 것이다. 특히 분쟁해결제도와 관련하여, 디지털 무역에 기존 비차별원칙의 동종상품에 대한 판단 기준이 적용되기 어렵고 개별 국가들은 비차별적 조치에 대한 디지털 무역 분쟁을 분쟁해결제도하에서 해결하길 원치 않는다. 그러므로 WTO 역시 디지털무역에 관한 한 분쟁해결제도를 보다 정교화하고 점진적으로 적용하는 등의 노력을 통해 구속력을 높여갈 방법을 모색할 필요가 있다.It is clear that World Trade Organization (WTO)’s experience and practice of free trade for about three decades have worked quite decently and have devoted to widespread free trade norms. In addition, WTO system is crucial in the free trade history because its members account for 98% of world trade and it introduced the dispute settlement system. The number of its members and binding effects of dispute settlement are enough to create the multilateral free trade norms in global economy. The fourth industrial revolution and Covid-19 pandemic, however, have required for new norms in digital economy. As soon as WTO fails to respond to the new area, individual states started to make an effort to form new global standards in global economy second to none. As a result, considering that the digital trade sector has not ripen yet and states are still in the process of molding the norms, this research expects to see if those trade norms made by the United States (U.S.), China or the third parties can coexist with the existing WTO system. Especially, the U.S., a representative in global norm making, is relatively more tilting toward the free trade tendency focusing on market opening, while China takes more protectionist stance setting a high value on raising its infant digital industry. Those ideas are reflected into the digital trade agreements from the U.S. and China as well as their domestic policies and domestic laws. First of all, the Trade in Service Agreement (TiSA) that the U.S. concluded and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) that the U.S. designed put an emphasis on autonomy of private sectors and contain free trade norms of WTO such as non-discrimination principles, improvement of market access, support for fair competition and transparency principles. On the other hand, in terms of China, the Regional Comprehensive Economic Partnership (RCEP) led by China holds the WTO’s free trade norms in a soft language or shows the protectionism aspect by leaving out the non-discrimination principles of WTO, which is the basic concept of free trade. Meanwhile, aside from the U.S. and China-led multilateral trade agreements, the research takes a look into the Digital Economy Partnership Agreement (DEPA), which was concluded by Singapore, New Zealand and Chile in 2020 in order to promote digital trade and set a framework for the digital economy. DEPA is meaningful because it officially broadens the range of digital agreements, and comes up with more comprehensive norms than before, providing the communication window to quickly respond to the uprising issues. However, if it fails to embrace the U.S. or China as its member, the significance of the regime can be underestimated. Moreover, the fact that DEPA excludes the non-discrimination principle from subjects of the dispute settlement procedure weakens the binding effect of itself. Nevertheless, this confrontation between the U.S. and China in digital trade norm making seems temporary. Because China expects to nurture its infant digital industry enough to have a competitive advantage in the long term, China would change its attitude toward free trade in order to penetrate into foreign markets, resulting in the free trade cooperation in the future. In other words, in the end, when digital industry develops enough to open its market and find outer markets, individual states would adjust interests among them and would form a global consensus on free trade norms such as non-discrimination, market access, fair competition and transparency in digital trade. As a result, the existing WTO system as multilateral free trade norms plays the supporting role for digital free trade norms. If digital trade norms make use of the existing WTO system in order to consolidate its free trade system, it can minimize the cost of building a new system. In particular, regarding that the WTO Dispute Settlement Body (DSB) has implemented a binding effect in the WTO system by inducing member states to follow the WTO norms, digital free trade norms based on the WTO system can maximize the benefits of dispute settlement infrastructure of DSB. At the same time, the WTO system also needs to take more flexible attitude in line with the new global norms. Especially regarding the dispute settlement, it is difficult to apply the existing the like product judgement of non-discrimination principle and individual states have made the exceptions in the digital trade agreements, showing that they do not want to bring disputes on non-discriminatory treatments to the dispute settlement regime. Therefore, WTO also needs to design more elaborate dispute settlement procedure adequate to digital trade and makes efforts such as gradual implementation of the dispute settlement procedure. This adjustment can help WTO reinforce its binding effects, which other agreements are not equipped with.1. Introduction 9 1.1. Study Background and Purpose 9 1.2. Study Method and Outline 11 2. Theoretical and Historical Background 13 2.1. Theoretical Background 13 2.2. Digital Trade and its Rise 17 2.3. Digital Trade under the WTO System 22 2.4. Digital Policy Direction of the U.S. and China 25 3. International Agreements in Digital Trade 30 3.1. The U.S. Digital-Centered Approach: Toward Free Trade System 30 3.2. China’s Trade-Centered Approach: Toward Protectionism 33 3.3. DEPA as an Advocate for Consistent Cooperation 35 3.4. Comparison of Attitudes of the U.S. and China 37 4. The Relation between Digital Trade Norms and the World Trade Orgainzation Norms 39 4.1. Relation between the Digital Trade Rule Makers 39 4.2. Limitations of DEPA: Members as Small Economies and Binding Effect 42 4.3. The Ongoing Digital Norm-Making and WTO Norms 43 5. Conclusion: Progressive Liberalization in Digital Trade 47 Bibliography 49 Abstract in Korean 54석

Digital trade and development: A way forward for Africa at a continental and multilateral level

This paper argues that digital trade can benefit developing countries and result in substantial financial gains. The regulation thereof has been at the forefront of negotiations at the multilateral level and within regions of Africa. While developing economies do not typically reap the benefits of digital progression, this paper proposes that digital trade can be developed in such a way so as to prioritise the developmental considerations of Africa specifically. Through observing the progress of the WTO platform for digital trade, namely the Work Programme on Electronic Commerce, it is seen that the multilateral regulation of digital trade is a complex task. Developing country participation at this level is essential to the sustainable development of digital trade. Within Africa, there have been notable advancements in the regulation of digital trade, evidenced by the establishment of COMESA’s Digital FTA. The considerations for the advancement of digital trade for a developing continent are numerous as not only do the traditional barriers to trade still remain a primary concern but there is also the potential threat of furthering the existing digital divide that persists between the developing and the developed world. Therefore, the paper proposes that should Africa consider developing digital trade through AfCFTA (the African Continental Free Trade Agreement) digital trade in services should be prioritised ahead of digital trade in goods. This would help overcome Africa’s trade facilitation and development challenges and advance Africa’s position in the multilateral trading system

Peran ekonomi digital terhadap hubungan ASEAN-Korea Free Trade Area (AKFTA)

This study is a qualitative desk research that examines the role of the digital economy in the ASEAN-Korea Free Trade Area (AKFTA) relations. ASEAN and Korea pay attention to the development of the 4.0 revolution and form the ASEAN-Korea Free Trade Area (AKFTA) to establish mutually beneficial relations. The development of the 4.0 industrial revolution has the potential to increase the level of global income and improve the quality of life of populations around the world. The success of the Korean industry can provide very valuable lessons for ASEAN by inspiring this group of countries to implement a digital economy. The partnership reflects the potential benefits of industrial improvement through digitalization and automation, the ASEAN-Republic of Korea Cooperation Center has implemented several trade and investment programs in industry segments related to Industry 4.0. AKFTA will enhance the international competitiveness of ASEAN and Korea by promoting the competition and efficiency that both parties have. AKFTA will shift the trade balance to ASEAN encourage rapid growth of the digital economy and give positive impacts to both parties.Penelitian ini merupakan riset kualitatif yang mengkaji tentang peran ekonomi digital terhadap hubungan ASEAN-Korea Free Trade Area (AKFTA). ASEAN dan Korea memperhatikan perkembangan revolusi 4.0 dan membentuk ASEAN-Korea Free Trade Area (AKFTA) agar terjalin hubungan yang saling menguntungkan. Perkembangan revolusi industri 4.0 memiliki potensi untuk meningkatkan tingkat pendapatan global dan meningkatkan kualitas hidup populasi di seluruh dunia. Keberhasilan industri Korea dapat memberikan pelajaran yang sangat berharga bagi ASEAN dengan menginspirasi kelompok negara ini untuk menerapkan ekonomi digital. Kemitraan ini mencerminkan manfaat potensial dari peningkatan industri melalui digitalisasi dan otomatisasi, ASEAN-Republic of Korea Cooperation Center telah menerapkan sejumlah program perdagangan dan investasi pada segmen industri yang terkait dengan Industri 4.0. AKFTA akan meningkatkan daya saing internasional ASEAN dan Korea dengan mempromosikan kompetisi dan efisiensi yang telah dimiliki oleh kedua pihak ini. AKFTA memiliki tujuan untuk menggeser neraca perdagangan ke ASEAN, sehingga bisa mendorong pertumbuhan ekonomi digital secara pesat dan memiliki dampak positif bagi kedua belah pihak

Hail to the thief: a tribute to Kazaa

THIS PAPER CONSIDERS THE ONGOING LITIGATION against the peer-to-peer network KaZaA. Record companies and Hollywood studios have faced jurisdictional and legal problems in suing this network for copyright infringement. As Wired Magazine observes: “The servers are in Denmark. The software is in Estonia. The domain is registered Down Under, the corporation on a tiny island in the South Pacific. The users—60 million of them—are everywhere around the world.” In frustration, copyright owners have launched copyright actions against intermediaries—like against Internet Service Providers such as Verizon. They have also embarked on filing suits against individual users of file-sharing programs. In addition, copyright owners have called for domestic- and international-law reform with respect to digital copyright. The Senate Committee on Government Affairs of the United States Congress has reviewed the controversial use of subpoenas in suits against users of file-sharing peer-to-peer networks. The United States has encouraged other countries to adopt provisions of the Digital Millennium Copyright Act 1998 in bilateral and regional free-trade agreements

The World Trade Organization in times of digital trade Addressing digital protectionism?

Màster Oficial d'Internacionalització, Facultat d'Economia i Empresa, Universitat de Barcelona, Curs: 2017-2018, Tutor: Xavier Fernández PonsDigital transformation is affecting more and more industries, changing existing trade in goods and services, and creating a new, digital trade. Baldwin (2016) calls it the 4th phase of globalization, the second unbundling, driven by the information and computer technology (ICT) revolution. The speed of this transformation is faster than other disruptive changes in the past and digital trade is becoming an important part of international trade. At the same time, the international trade sphere is experiencing a severe crisis, with barriers to classical trade in goods rising and a trade war between China, the United States (US) and the European Union (EU) imminent. The World Trade Organization (WTO) is the multilateral organization that has dealt with rules for international trade for decades, ensuring trade flows to be as free and predictable as possible. Now, the organization seems to be paralyzed, not knowing how to respond to the new, protectionist, realities in international trade. In March 2018, German Chancellor Angela Merkel highlighted in her government declaration that “digitalization and protectionism are two opponent poles that in our understanding do not go well with each other. This is actually why the 21st century is the century of multilateral solutions and multilateral institutions. This is especially the case with regard to trade.

Indo-U.S. FTA - Prospects for Audiovisual Services

Many WTO (World Trade Organization) member countries, including India, are defensive about opening up of the audiovisual sector in the Doha Round due to reasons of cultural sensitivity. On the other hand, the United States is pushing for liberalizing trade in this sector both in the WTO and in its bilateral FTAs (Free Trade Agreements). With the slow progress of the Doha Round, India and the United States are exploring the possibilities of entering into FTAs with like-minded trading partners. In this context, the present paper discusses the prospects of liberalizing audiovisual services under a possible Indo-U.S. FTA. The study found that India and the United States have significant trade complementarities in this sector which can be further enhanced under an FTA. It identifies areas such as co-production of films, digital content creation and broadband infrastructure in which companies from India and the United States can enter into mutually beneficial collaborations. It argues that India should enter into a media cooperation agreement with the U.S. to facilitate the inflow of technical know, finance and best management practices. It discusses regulatory and other reforms which would not only improve the productivity and global competitiveness of the Indian audiovisual sector but also enable it to gain from the FTA.Indo-U.S. FTA, GATS, bilateral agreements, audiovisual, Services

Indo-U.S. FTA: Prospects for Audiovisual Services

Many WTO (World Trade Organization) member countries, including India, are defensive about opening up of the audiovisual sector in the Doha Round due to reasons of cultural sensitivity. On the other hand, the United States is pushing for liberalizing trade in this sector - both in the WTO and in its bilateral FTAs (Free Trade Agreements). With the slow progress of the Doha Round, India and the United States are exploring the possibilities of entering into FTAs with like-minded trading partners. In this context, the present paper discusses the prospects of liberalizing audiovisual services under a possible Indo-U.S. FTA. The study found that India and the United States have significant trade complementarities in this sector which can be further enhanced under an FTA. It identifies areas such as co-production of films, digital content creation and broadband infrastructure in which companies from India and the United States can enter into mutually beneficial collaborations. It argues that India should enter into a media cooperation agreement with the U.S. to facilitate the inflow of technical know, finance and best management practices. It discusses regulatory and other reforms which would not only improve the productivity and global competitiveness of the Indian audiovisual sector but also enable it to gain from the FTA.Indo-U.S. FTA, GATS, bilateral agreements, audiovisual, services

Digitization, Copyright, and the Welfare Effects of MusicTrade

Since the launch of the iTunes Music Store in the US in 2003 and in much of Europe in the following years, music trade has shifted rapidly from physical to digital products, raising the availability of products in different countries. Despite substantial growth in availability, choice sets have not converged across countries; and observers point to copyright-related transaction costs as an obstacle to greater availability. Policy makers are now contemplating various copyright reforms that could reduce these trade costs. The possibility of these changes raises the question of how much benefit they would create for consumers and producers around the world. We address these questions with a structural model of supply and demand for music in 17 countries, which we employ to counterfactually simulate the effect of a European digital single market on the welfare of consumers and producers. We also simulate autarky and worldwide frictionless trade - in which all products are available in all countries - allowing us to quantify both the conventional gains from status quo trade as well as the maximum possible gains available to free trade. Existing and additional trade have different patterns of benefit to consumers and producers. Status quo trade benefits consumers everywhere, but European consumers have benefited more than North Americans. Existing trade has had large benefits to American producers but on balance small benefits to European producers. Additional trade would continue the pattern of consumers' benefits with larger gains to European consumers but would reverse the pattern for producers. Greater availability of digital music resulting from easing of copyright restrictions would raise per capita gains to producers in Europe more than in North America. A Europeandigital single market for music would bring total benefits of €19 million to European consumers and €10 million to European producers. Finally, we find that a European digital single market would bring most of the benefits of worldwide frictionless trade to both consumers and producers alike

디지털 무역의 개인정보보호와 통상협정 : 유럽연합법 발전을 중심으로

학위논문 (석사)-- 서울대학교 대학원 : 국제대학원 국제학과, 2018. 2. 안덕근.Along with the development of digital technology, digital forms of trade volumes have been enlarged dramatically. These trades inevitably contain transactions of personal data which arouse concerns over possible misuses. However, trade regulations under the World Trade Organization (WTO) regime and other Free Trade Agreements cannot fully prevent privacy infringement and provide proper remedy measures for individuals. This paper studies the long experiences and efforts of the European Union (EU) which has developed the legal foundations for protecting personal data while maintaining its free flow among countries. In particular, the study concentrates on how the efforts are reflected on the international agreements that the EU concluded and compares those agreements with other international trade regulations. What was interesting was that all the regulations in typical trade agreements naturally linked the data protection concern to the human rights which had long been dismissed when dealing with trade concerns. Most of the trade agreements, however, are limited in providing propriate remedy measures for each individual in that these agreements are based on inter-governmental relationships and advocate collective interests of domestic industries. Unlike other trade agreements, the Privacy Shield Principles, which was agreed between the EU and the U.S. following the nullification of previous Safe Harbor Agreement, is introduced as the most concrete and effective regulations for protecting personal data from companies that may infringe the agreement. As a legal area that does not have unified multilateral frame to regulate the digital trade concern, harmonizing the regulation would enhance market efficiency and predictability of participants. The EU-US Privacy Shield Principles that the two trade giants have already compromised can be model clauses for further harmonizing current fragmented international regulations.I. Introduction 1 II. Privacy Protection of European Union 4 1. Early Legal Development for Data Protection 4 2. General Data Protection Regulation 7 3. The Safe Harbor Agreement 8 4. EU-US Privacy Shield Framework Principle 11 III. Privacy Protection of International Trade Agreements 22 1. Regulation under the World Trade Organization 22 2. Regulation under the Free Trade Agreements 33 2.1. Regional Regulations on the Data Protection 33 2.2. Bilateral Free Trade Agreements 35 2.2.1. US-Korea Free Trade Agreement 35 2.2.2. EU-Korea Free Trade Agreement 36 2.2.3. The Comprehensive Economic and Trade Agreement 37 2.2.4. The Transatlantic Trade and Investment Partnership 40 2.3. Trans Pacific Partnership 44 IV. Privacy Protection of Digital Trade 49 1. Special Natures of the Discussion 49 2. Limits of Existing Regulations 52 3. Harmonization of Data Protection Regulations in Trade Area 56 V. Conclusion 59 Bibliography 61 Abstract in Korean 65Maste

The Trans-Pacific Partnership (TPP): In Brief

The Trans-Pacific Partnership (TPP) is a proposed free trade agreement (FTA) among 12 Asia-Pacific countries, with both economic and strategic significance for the United States. If approved, it would be the largest FTA in which the United States participates. The 12 countries announced the conclusion of the TPP negotiations on October 5, 2015, after several years of ongoing talks. The President released the text of the agreement and notified Congress of his intent to sign on November 5, 2015. Congress would need to pass implementing legislation for a final TPP agreement to enter into force for the United States. Such legislation would be eligible to receive expedited legislative consideration under the recent grant of Trade Promotion Authority (TPA), P.L. 114-26, if Congress determines the Administration has advanced the TPA negotiating objectives, and met various notification and consultation requirements. TPP negotiating parties include Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Through the TPP, the participating countries seek to liberalize trade and investment and establish new rules and disciplines in the region beyond what exists in the World Trade Organization (WTO). The FTA is envisioned as a living agreement that will be open to future members and may become a vehicle to advance a wider Asia-Pacific free trade area. It is a U.S. policy response to the rapidly increasing economic and strategic linkages among Asian-Pacific nations and has become the economic centerpiece of the Administration’s “rebalance” to the region. The TPP has slowly evolved from a more limited agreement among four countries concluded in 2006 into the current 12-country FTA agreement, with the United States joining the negotiations in 2008. Japan, the most recent country to participate, joined the negotiations in 2013. This significantly increased the potential economic significance of the agreement to the United States, because Japan is the largest economy and trading partner without an existing U.S. FTA among TPP negotiating partners (thus having greater scope for trade liberalization with the United States). The United States already has FTAs with 6 of the 11 other countries participating. Malaysia and Vietnam also stand out among the TPP countries without existing U.S. FTAs, given the rapid growth in U.S. trade with the two nations over the past three decades and substantial presence of state-owned enterprises (SOEs) that will be affected by the TPP’s SOE provisions. Views on the potential impact of the agreement vary. Proponents argue that the TPP has the opportunity to boost economic growth and jobs through expanded trade and investment opportunities with negotiating partners that currently make up 37% of total U.S. goods and services trade, involves writing new trade rules and disciplines, and deepening U.S. trade and investment integration in what many see as the world’s most economically vibrant region. The agreement would eventually eliminate all tariffs on manufactured products and most agricultural goods. It also includes new trade disciplines on issues such as digital trade barriers, state-owned enterprises (SOEs), and regulatory coherence, among other provisions. Opponents voice concerns over potential job loss and competition in import-sensitive industries, and how a TPP agreement might limit U.S. ability to regulate in areas such as health, food safety, and the environment, among other concerns. The Obama Administration, joined by many analysts as well as many policymakers in the region, has argued that the strategic value of a potential TPP agreement parallels its economic value, contending that the agreement would strengthen U.S. allies and partners and reaffirm U.S. economic leadership in the region. The President has repeatedly highlighted the importance of maintaining U.S. leadership in crafting global trade rules, notably with reference to potentially alternative Chinese initiatives. China is not a party to the TPP. Others argue that past trade pacts have had a limited impact on broad foreign policy dynamics