The digitalization of trade is a reality, and yet the regulation of the world trading system as embedded in the World Trade Organization (WTO) only tangentially, if at all, touches upon this issue. True, digitalization of the economy, the fourth industrial revolution as it is colloquially referred to, is a recent phenomenon, and to some extent post-dates the conclusion of the Uruguay round agreements (1994). True also, however, is the reality that the world trading system has shown a remarkable inability to adjust to modern business realities in its multilateral rule architecture. To the extent these transformations are being reflected in new rules, they are being introduced in regional or bilateral frameworks, albeit in an incomplete fashion. It is also the case that the world is witnessing several different regimes around data and information economy developing in the world today – most notably in the US, Europe, and China. As always, part of the reason that international frameworks have not been born stems from the fact that international rules rarely occur before domestic regulatory and legal regimes are well developed.

International trade law, organized around the goods-services dichotomy, is about to meet the Internet of Things (IoT). How will rules written for the world of 1994 fare in a world of talking teapots and connected cars? IoT will especially raise governmental concerns with respect to privacy, security, and standards. Indeed, governments have already begun taking adverse measures against foreign IoT suppliers based not on the hardware, but on the digital features of the products. This paper argues that IoT devices comprise both goods and services, therefore calling into application multiple WTO disciplines, with the specific agreements that are applicable dependent on the particular governmental measure subject to challenge.

As global data flows and digital technologies transform international trade, governments and regulators have to determine how to benefit from these developments while maintaining the integrity of their domestic regulations. Currently, governments are increasingly restricting global data flows and requiring data localization, undermining the economic benefits of digital trade. To address this trend will require a system of digital trade governance that has two key elements. One element is new digital trade rules, some of which exist in the WTO and others which are being developed in free trade agreements. The other is international regulatory cooperation to develop standards and mutual recognition agreements in areas such as privacy and consumer protection that gives domestic regulators confidence that allowing data to leave their jurisdiction will not undermine achievement of domestic regulatory goals. In the absence of such regulatory cooperation, governments are likely to continue to restrict data flows, relying on the exceptions provisions to their digital trade commitments.

This paper poses a hypothetical WTO challenge to the Passenger Name Records (PNR) Transfer Agreements the European Union has signed with the United States (as well as Australia and Canada). The focus will be on a possible citation of GATS Article XIV National Security Exception by the EU, and the viability of such a defense. Because of the absence of case law, this paper will also attempt to synthesize an acceptable standard for assessing GATS National Security Exception citations.

It is a truth universally acknowledged that every ambitious twenty-first century trade agreement is in want of a chapter on electronic commerce. One of the most politically sensitive and technically challenging issues is personal privacy, including cross-border transfer of information by electronic means, use and location of computing facilities, and personal information protection. States are learning to solve the problem of state responsibility for something that does not respect their borders while still allowing twenty-first century commerce to develop. A comparison of the Canada–European Union Comprehensive Economic and Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP) allows us to see the evolution of the issues thought necessary for an e-commerce chapter, since both include Canada, and to see the differing priorities of the US and the EU, since they are each signatory to one of the agreements, but not of the other. I conclude by seeking generalizations about why we see a mix of aspirational and obligatory provisions in free trade agreements. I suggest that the reasons are that governments are learning how to work with each other in a new domain, and learning about the trade implications of these issues.

The e-commerce chapters in South Korea's Free Trade Agreements (FTAs) cover a wide range of issues, ranging from non-discrimination to electronic signatures. Across the agreements, the country's provisions on consumer protection, paperless trading, and data protection are uniquely consistent, while those on other issues are not. With the aid of a framework (Framer v. Follower) that captures the dynamics of bilateral negotiations, this paper argues that in Korea's case, the more consistent a particular set of provisions is portfolio-wide, the more likely it was for Korea to have prioritized the relevant issue and actively pushed its preferred terms in the FTAs.

Technology is transforming global trade. The global trading system, however, has struggled to keep up with changes in technology. One of the major challenges for the trading system is that the issues raised by digitally enabled commerce are largely regulatory in nature. The issues that are at the forefront of digital trade increasingly relate to citizens’ most fundamental interactions, including speech, finance, energy, and transportation. This paper argues that resolving these international regulatory issues will require reforming the approach that has been taken to global trade negotiations. International discussions around the most challenging issues in the digital economy ought to move away from the ‘horse-trading’ nature of traditional trade negotiations and towards a strategy focused on regulatory cooperation. Failure to achieve regulatory cooperation could further fragment digital services based upon national borders. The Internet has the potential to positively impact the global economy precisely because it is global, decentralized, and bottom-up in nature. International policymaking through regulatory cooperation can maintain those principles, while protecting fundamental national concerns such as stability, privacy, and security.

This Article attempts to explore the challenges in situating a multilateral digital trade agreement within the legal framework of the World Trade Organization (WTO). Section 1 of the article discusses the broad challenges that digitization poses for the international legal framework for trade regulation. I argue first that the traditional classification of products into goods and services under the WTO system is structurally incompatible with the digital economy. I also argue that striking the appropriate balance between trade liberalization and the pursuit of legitimate public policy objectives in a digital trade agreement will be uniquely challenging because certain features that are intrinsic to the digital industry and business strategies of established players in the digital market raise serious anticompetition challenges. A multilateral agreement regulating digital trade needs to acknowledge and address these challenges. Section 2 surveys the efforts that have been undertaken to regulate digital trade as manifested in the WTO Work Program on Electronic Commerce. Acknowledging that the digital trade agenda of the Trans-Pacific Partnership (TPP) agreement could be used as a benchmark for discussions on e-commerce at the WTO, I argue that future negotiations for a multilateral digital trade policy will not benefit from using the TPP's digital trade agenda as a benchmark. The TPP does not reconcile systemic tensions between the digital economy and the extant WTO system or address the anticompetition challenges that are unique to the digital ecosystem.