3 - Data-Driven Platform as Service

Summary

Today’s platformization of services was an “unforeseen” phenomenon when the WTO was established. However, through the pro-liberalization WTO jurisprudence developed in past decades, the GATS market access commitments have played more than a marginal role in the story of the emergence of datafication, leaving the door open for big tech companies. Without question, platforms’ associated datafication practices influence human society, in terms of their beauty as well as their peril. The perilous side therefore calls into question whether international trade commitments negotiated in the pre-digital age should be sustained in this datafied world. In the FTA context, Chapter 3 argues that listing nonconforming measures under the Cross-Border Trade in Services Chapter represents the most critical step in reserving a state’s “digital sovereignty.” Such inscriptions ensure that a state does not risk committing to future services and associated delivery means that did not exist at the time of treaty negotiations. Nonetheless, market access obligations do not prevent states from adopting domestic regulations in pursuit of legitimate national policies. Digital trade liberalization must be accompanied by the introduction of data regulations to address the potential risks and harms.