The WTO E-commerce Joint Statement Initiative (JSI) aims to agree common rules in areas including: enabling electronic commerce; promoting openness and trust in e-commerce; cross-cutting issues; telecommunications and market access for e-commerce firms. The JSI was launched at the WTO Ministerial Conference in 2017.
In 2019 under this initiative, e-commerce negotiations began and in 2020 a consolidated negotiating text formed the basis of the ongoing negotiations amongst 86 WTO members.
Australia, Japan and Singapore are currently co-convening this plurilateral process.
The use of digital commerce has demonstrated a meteoric rise over the past few decades. It was heightened by the rapid uptake and use of digital commerce for both business and social purposes during the COVID-19 pandemic. Throughout this time, regulations governing e-commerce trade have generally not kept up nor been uniform between countries – and as a result, the impacts have been immediate, unevenly spread and been disruptive to both trade and investment. The pandemic in particular highlighted the divide in countries’ ability to take up e-commerce opportunities, due to disparities in internet access and connectivity as well as key digital skills gaps. Unsurprisingly, developed, high income economies was where the e-commerce adoption was greatest.
Outside the WTO, members have negotiated numerous bilateral and regional arrangements that have specifically targeted rules on digital trade and e-commerce. The agreements reached in these fora are a significant contribution to harmonising rules between countries and updating those that need to adapt to changing global developments, including economic recovery and the COVID-19 pandemic.
The WTO E-commerce Joint Statement Initiative (JSI) aims to level the playing field by agreeing a set of common rules across a range of electronic commerce issues including: enabling electronic commerce; promoting openness and trust in e-commerce; cross-cutting issues; telecommunications and market access for e-commerce firms. While there is no universally agreed definition of what constitutes e-commerce, the WTO Work Programme defines “electronic commerce” as the production, distribution, marketing, sale or delivery of goods and services by electronic means. for consumers.
WTO members first issued a Joint Statement Initiative on e-commerce at the WTO Ministerial Conference in 2017 but it wasn’t until January 2019, that 76 WTO members issued a Joint Statement on Electronic Commerce in the margins of the World Economic Forum in Davos, confirming their intention to commence negotiations on trade-related aspects of e-commerce.
Then in 2020, 86 WTO members began negotiating on a consolidated text which continues to form the basis of the negotiations. This JSI consolidated draft negotiating text builds on six key areas that emerged from the preceding negotiations, set out here:
1. Enabling electronic commerce:
Facilitating electronic transactions: Electronic transaction frameworks; electronic authentication and e-signatures; electronic contracts; electronic invoicing; and electronic payment services
Digital trade facilitation and logistics: Digital trade facilitation and logistics; paperless trading; de minimis; customs procedures; improvements to trade policies; single windows data exchange and system interoperability; logistics services; and enhanced trade facilitation
2. Openness and e-commerce:
Non-discrimination and liability: Non-discriminatory treatment of digital products; interactive computer services (limiting liability); interactive computer services (infringement)
Flow of information: Cross-border transfer of information by electronic means/cross-border data flows; location of computing facilities; [financial information / location of financial computing facilities for covered financial service suppliers]
Customs duties on electronic transmissions
Access to Internet and data: Open government data; Open Internet access/ principles on access to and use of the Internet for [electronic commerce/digital trade]; access to and use of interactive computer services; and competition
3. Trust and e-commerce:
Consumer protection: including online consumer protection and unsolicited commercial electronic messages
Privacy: Personal information /personal data protection
Business trust: Source code; ICT products that use cryptography
4. Cross-cutting issues:
Transparency, domestic regulation and cooperation: Transparency; electronic availability of trade-related information; domestic regulation; cooperation; cooperation mechanism
Capacity building: Options for capacity building and technical assistance
Updating the WTO Reference Paper on telecommunications services: Scope; definitions; competitive safeguards interconnection; universal service; licensing and authorization; telecommunications regulatory authority; allocation and use of scarce resources; essential facilities.
Network equipment and products: Electronic commerce-related network equipment and products
6. Market access:
Services market access; temporary entry and sojourn of electronic commerce-related personnel; goods market access
Small Group Processes
More recently, the following ten small groups were set up to bridge the gaps in the key areas where convergence was deemed possible:
- consumer protection
- e-signatures and electronic authentication
- paperless trading
- digital trade facilitation
- source code
- open government data
- market access
- customs duties on electronic transmissions, and
- open internet access.
Key Areas of Debate
Some of the key areas generating the most debate in the negotiations include restricting the free flow of data, network neutrality and customs duties on electronic transmissions (see Moratorium) – which have also played out in the form of a north-south divide.
On the issue of limiting the free flow of data through data localisation measures, countries such as the US and Japan argue on one side of the debate, that it is likely to push companies to establish a commercial presence in each country within their global supply chain where data localisation requirements exist. The costs of ensuring storage locally in multiple locations within varying regulatory jurisdictions, reflecting these in contracts and potentially processing data in more than one location – could be significant. For Micro, Small and Medium Enterprises (MSMEs) in particular the restrictive impacts are likely to be most acutely felt.
On the other side of the argument, supporters of the measures claim there are important public interest reasons to institute them – such as preventing serious criminal and intellectual property violations. With regard to network neutrality, the rules are aimed at making sure everyone has equal access to the network, especially where e-commerce is concerned. In particular it ensures that broadband internet suppliers do not discriminate against particular websites or online services, including by blocking or slowing their access. This is designed to prevent companies from limiting consumer access to certain services, such as slowing streaming of certain providers in order to skew their purchasing decisions towards others. In this case too, open and free network access for MSMEs especially in developing countries, and in the context of accessing e-commerce markets is particularly important.
One of the issues that has generated the most notable debate in the e-commerce arena is that of customs duties on electronic transmissions. Known as the WTO e-commerce moratorium, it is a ban imposed on charging customs duties on electronic transmissions since 1998.
While there is no detailed definition of electronic transmissions – the only reference is in the WTO Work Programme on Electronic Commerce, which defines “electronic commerce” as the “production, distribution, marketing, sale or delivery of goods and services by electronic means. Beyond that, others consider products that are or can be digitised, to fall within its definition including software, e-commerce, online search services, online advertising, motion pictures and video and audio activities, data hosting, processing and communication (ECIPE).
The debate has been most prominent in creating a north-south divide, with developing countries led by India and South Africa, expressing the view that the moratorium has an adverse impact on them through loss of tariff revenue and other charges and taxes, industrialisation impacts as well as the effects of using digital technologies such as 3D printing in the manufacturing sector. Although not members of the JSI, India and South Africa submitted a proposal to the WTO on this issue- calling for a “re-think” of the approach to the moratorium given the likely discussion on it at MC12. They argued there is a need for the discussion to deliver an inclusive and development-oriented digital transformation agenda, and that the current discussion within the JSI focuses too much on binding rules which could marginalize developing countries.
Supporters of the group also cite a research paper by UNCTAD – on Bridging the Digital Divide (also accessible at our Analysis Section). At the other end of the spectrum, developed nations feel that the benefits of the moratorium are significant enough to justify the loss of tariff revenue and other impacts. They argue that customs duties could significantly impede the growth of ecommerce both through inflating costs and creating technological impracticalities.
WTO members including Australia, Singapore and Switzerland also submitted a paper to the WTO on broadening the discussion to include their perspective that lifting the Moratorium would have not have the desired effects on government revenue and would instead result in high costs on consumer welfare and export competition. They also drew on research – a paper by the OECD in support of their arguments (also accessible at our Analysis Section).
Ahead of the 12th Ministerial Conference (MC12), agreed text has already been put forward on spam, electronic signatures and authentication, and e-contracts; online consumer protection and open government data. A text on transparency has also been set aside – depending on the final scope and legal structure of the negotiated outcome at MC12. Most recently. The small group processes have very recently brought about some convergence on issues such as e-invoicing, cybersecurity, customs duties on electronic transmissions – with agreement possible on open internet access and paperless trading issues in particular.
Discussions are continuing on non-discriminatory treatment of digital products and a newly submitted proposal on implementation periods for developing and least-developed countries.
Membership: The Group is currently comprised of the following 86 member countries: Albania; Argentina; Austria; Australia; Bahrain; Belgium; Benin; Brazil; Brunei Darussalam; Bulgaria; Burkina Faso; Cameroon; Canada; Chile; China; Colombia; Costa Rica; Côte d’Ivoire; Croatia; Cyprus; Czech Republic; Denmark; Ecuador; El Salvador; Estonia; Finland; France; Georgia; Germany; Greece; Guatemala; Honduras; Hong Kong, China; Hungary; Iceland; Indonesia; Ireland; Israel; Italy; Japan; Kazakhstan; Kenya; Republic of Korea; Kuwait; Lao People’s Democratic Republic; Latvia; Liechtenstein; Lithuania; Luxembourg; Malaysia; Malta; Mexico; Republic of Moldova; Mongolia; Montenegro; Myanmar; Netherlands; New Zealand; Nicaragua; Nigeria; North Macedonia; Norway; Panama; Paraguay; Peru; Philippines; Poland; Portugal; Qatar; Romania; Russian Federation; Saudi Arabia; Singapore; Slovak Republic; Slovenia; Spain; Sweden; Switzerland; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Thailand; Turkey; Ukraine; United Arab Emirates; United Kingdom, United States and Uruguay.
[Text Proposal] EU | Norway | Ukraine | UK – Joint text proposal for the disciplines relating to Telecommunications Services
This proposed text proposes language and disciplines on telecommunications services in the areas of competitive safeguards, interconnection, universal service, licensing and authorisation, the work of telecommunications regulatory authorities, the allocation of scarce resources and essential facilities.
[Text Proposal] Canada | EU – Joint text proposal for the disciplines relating to Telecommunications Services
Date: 15 March 2021
Member: Canada and the EU
This proposed text would commit all parties to the e-commerce plurilateral to, within a number of years still to be negotiated, join the WTO Information Technology Agreement(s) I and II which remove tariffs on a range of electronic goods.
[Text Proposal] New Zealand | Singapore – Proposal for disciplines relating to on E-Invoicing
This proposed text would see members commit to ensuring that the implementation of measures related to e-invoicing in its jurisdiction is designed to support cross-border interoperability and be based on international systems, guidelines and recommendations where they exist, and to sharing best practices pertaining to e-invoicing systems.
[Text Proposal] Brazil – Textual Proposal on issues discussed as part of the Joint Statement Process
In this proposal Brazil set out language for an e-commerce outcome in the areas of general principles, access to and use of the internet for digital trade, electronic contracts, taxation, competition, consumer protection, regulation and the regulatory environment, cross-border information transfer, cybersecurity, personal data protection, and the proposed general exceptions to the agreement.
[Text Proposal] Brazil – Textual Proposal on digital trade facilitation
In this addendum to the textual proposals laid out in INF/ECOM/27/Rev.1, Brazil proposed draft language on digital trade facilitation. Specifically this proposal includes language and disciplines in areas including electronic trade administration of documents, single windows, electronic availability of trade related information, and use of technology for the release and clearance of goods.
[Text Proposal] Canada – Preventing the Use of Personal Information from being used for the Discrimination or Persecution of Natural Persons
Date: 04 September 2019
In this concept paper, Canada put forward its rationale for, and proposed language on, protections for users in the digital economy from their personal information potentially being used by governments for the purposes of discrimination and/or persecution.
[Text Proposal] Canada – E-Commerce JSI Proposed Text
Date: 07 June 2019
This proposal contained a draft of a full e-commerce outcome document as prepared by Canada. It includes 17 articles including specific language covering domestic electronic transactions framework, a prohibition of customs duties on digital products transmitted electronically, access to and use of the internet for digital trade, electronic authentication and e-signatures, the WTO Information Technology Agreement, online consumer protection, personal information protection, spam, cross border electronic data transfers, location of computing facilities and source code.
[Text Proposal] New Zealand – Digital Trade Facilitation and Logistics
Date: 05 July 2019
Member: New Zealand
In this proposal New Zealand put forward language on paperless trading and e-invoicing.
[Text Proposal] New Zealand – Customs Duties
Date: 07 June 2019
Member: New Zealand
In this proposal New Zealand put forward language on customs duties.
[Text Proposal] New Zealand – Consumer Protection
Date: 26 April 2019
Member: New Zealand
In this proposal New Zealand put forward language on consumer protection.
[Text Proposal] Singapore – E-Commerce JSI Proposed Text
Date: 30 April 2019
In this proposal Singapore submited a draft text for an outcome on e-commerce which would cover the broad areas of ‘enabling e-commerce’, ‘openess and e-commerce’ and ‘trust and e-commerce.’
[Text Proposal] European Union – E-Commerce JSI Proposed Text
Date: 26 April 2019
Member: European Union
In this proposal European submited a draft text for an outcome on e-commerce which would cover electronic contracts, electronic authentication and electronic signatures, consumer protection, spam, customs duties on electronic transmissions, source code, cross-border data flows, protection of personal data and privacy, open internet access, telecommunication services and computer services.
GTP - New E-Learning course on e-commerce negotiation terminology The Geneva Trade Platform has created a free 90 minute e-learning on the technical terms used in e-commerce related negotiations, including many of those in this plurilateral.
WTO - Negotiations on e-commerce advance, eyeing a statement at MC12 The co-convenors of the negotiations on e-commerce — Australia, Japan and Singapore — said at a meeting on 10 November they plan to issue a statement on behalf of the participating members to take stock of the work achieved so far. The statement, to be issued at the 12th Ministerial Conference (MC12), will also reiterate the commitment to achieving an ambitious agreement on e-commerce and set targets for work in the year ahead. Members also heard updates from facilitators of small group discussions and reviewed text proposals for the e-commerce agreement.
WTO - Members continue review of LDC services waiver, e-commerce work programme The 1 July meeting of the Council on Trade in Services addressed the WTO work programme on e-commerce and the operationalization of a waiver from WTO rules that allows members to offer more favourable market access for service providers from least developed countries (LDCs). Members also reviewed services-related notifications submitted by a number of WTO members and addressed several services-related trade concerns. They also discussed issues related to services domestic regulation and implementation of services commitments at separate meetings of the Council’s subsidiary bodies.
IISD - WTO Members Participating in E-commerce Talks Arrive at “Clean Text” on E-signatures, Authentication World Trade Organization (WTO) members participating in the joint statement initiative (JSI) process on e-commerce announced they have finalized a “clean” negotiating text on e-signatures and authentication, which seeks to ensure that electronic signatures used in online transactions “are not denied their value or legal effect because they are submitted in electronic format.”
WTO - Report looks at role of e-commerce during the COVID-19 pandemic The WTO Secretariat has published a new information note looking at how the COVID-19 pandemic has affected e-commerce, including the implications for cross-border trade. It notes the increased use of e-commerce as consumers adapt to lockdowns and social distancing measures and draws attention to several challenges, such as the need to bridge the digital divide within and across countries.
IISD - Negotiations Make Progress on Spam World Trade Organization (WTO) members continued negotiations on electronic commerce, which aim to facilitate digital trade and build on existing WTO agreements and frameworks. Finalization of the joint statement initiative (JSI) process on e-commerce and facilitation of digital trade are anticipated to play a key role in economic recovery from COVID-19.
WTO - Members agree to extend e-commerce, non-violation moratoriums WTO members meeting as the General Council agreed on 10 December to extend two existing moratoriums related to customs duties on electronic transmissions and the initiation of “non-violation” complaints under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
CUTS International - Addressing the Gender Dimension of E-commerce This study examines the gender dimension in E-commerce, identifying the main gender gaps in the e-commerce ecosystem. It also looks through a gendered lens at the emerging e-commerce policies and regulations from the national to the international level. The aim is to generate a deeper understanding of the gender perspectives of E-commerce and to develop a holistic framework for addressing the current gender gaps through appropriate policies and regulations.
Human Rights Economics - How can WTO talks on e-commerce benefit women? If only we knew Author: Caroline Dommen
E-commerce is touted as offering new and advantageous opportunities for women. But what do WTO negotiations on the topic really hold for women’s rights? This piece argues that despite the hype, there is still precious little information in the public domain about the initiative's true benefits for women.
IISD - Negotiating Services Market Access under the E-commerce Joint Statement Initiative This policy brief aims to help developing countries establish a more comprehensive understanding of the ongoing trade in services market access negotiations under the E-commerce JSI. The brief
starts by providing a general view of the requests submitted for liberalizing trade in services, their proponents, and the concerned sectors and modes of supply. It unpacks challenges impacting the
progress of the negotiations. The brief then explores the opportunities and challenges associated with further commitments by developing countries under the JSI. Finally, the brief provides
some guiding questions to help developing countries assess their interests and formulate their negotiating positions.
OECD - The OECD Digital Services Trade Restrictiveness Index The OECD Digital Services Trade Restrictiveness Index (Digital STRI) is a new tool that identifies, catalogues, and quantifies cross-cutting barriers that affect services traded digitally.
OECD - Mapping commonalities in regulatory approaches to cross-border data transfers This paper identifies the commonalities, complementarities and elements of convergence in the different instruments for moving data across borders, with the aim of supporting international dialogue and co-operation on more predictable and transparent combinations of data flows and “trust”.
EAF - Managing digital trade in Asia An overview of the efforts being made to liberalize and harmonize rules in trade in digital services, and why these should be encouraged as a positive step forward for economies in Asia.
EAF - East Asia leads e-commerce and the digital trade revolution East Asian trade is set to rise even further in importance because the scale of the region’s economic recovery is larger and faster than anywhere else. Asia was already the second most integrated regional trade network after the European Union in 2019, with regional trade at 58 per cent of total trade. East Asia’s trading system is likely to become more inclusive and sustainable with its rapid shift to digital platforms.
WEF - Advancing Data Flow Governance in the Indo-Pacific: Four Country Analyses and Dialogues This paper summarizes highlights from workshops on data transfer governance and digital growth in the Philippines, Thailand, India and Viet Nam. These discussions served to review national data policy developments and identify avenues for facilitating data transfers.
IISD - E-commerce Joint Statement Initiative Negotiations Among World Trade Organization Members This brief builds on an earlier note published in 2020 that provided an update on the e-commerce Joint Statement Initiative negotiations among a group of WTO members. It describes how the negotiations have been affected by the new context of COVID-19 and highlights the pandemic’s impacts on e-commerce, economic development, and gender equality and social inclusion (GESI) aspects. Finally, the brief gives an overview of the negotiations’ key issues where there are indications of convergence, and others where divergence remains, as the group prepares for the WTO’s Twelfth Ministerial Conference (MC12).
UNCTAD - What is at stake for developing countries in trade negotiations on e-commerce? This report aims to provide evidence that can help the developing world acquire better understanding on the implication of the ongoing JSI negotiations in the WTO to their development prospect. By focusing on the development implications of aspects that may be covered in a possible negotiation outcome, it seeks to offer valuable inputs that can help countries assess various options for harnessing e-commerce for sustainable development.
Dalberg/SECO - New evidence on the impact of customs duties for digitizable products and electronic transmissions. The cases of Egypt and Vietnam Author: Nicolas Köhler-Suzuki
This study looks at the flow of digitizable goods imports in Egypt and Vietnam and the potential customs revenue impacts thereof. It finds that applying customs duties on digitized goods would likely lead to insignificant revenue generation and recommends a cross-border VAT collection as a potential alternative option.
WEF - Facilitation 2.0: Trade and Investment in the Digital Age [Lessons from Papua New Guinea] This report showecases the Facilitation 2.0 initiative, piloted in Papua New Guinea, which aims to advance practical, business-driven reforms at the intersection of trade facilitation, investment, and e-commerce.
WEF - Connecting Digital Economies: Policy Recommendations for Cross-Border Payments This report provides governments with concrete recommendations to promote inclusive growth in the digital economy.
UNCTAD - The COVID-19 Crisis: Accentuating the Need to Build Digital Divides Improved Internet connectivity and skills have helped many countries to cope with the health and economic crisis from COVID-19. Yet the pandemic has raised the bar for the digital transition and underscores the need to close the digital divides that risk leaving some people and firms worse off than others in a post-COVID world, according to the OECD report.
OECD - Electronic transmissions and international trade - shedding new light on the moratorium debate The debate about whether or not to extend the WTO Moratorium on imposing customs duties on electronic transmissions has, to date, narrowly focused on its potential customs revenue implications. This paper sets out to broaden and deepen this debate. First, by putting current estimates of the customs revenue implications into perspective, showing that potential losses tend to be low relative to overall government revenue. Second, by deepening the debate on the cost of tariffs, arguing that these are unstable sources of revenue, that they are associated with lower output and productivity and that their burden falls mainly on domestic consumers, not foreign firms. Third, by broadening the debate to consider the benefits associated with electronic transmissions, including growing consumer welfare and export competitiveness. The paper argues that, overall, the revenue
implications of the Moratorium are likely to be relatively small and that its lapse would come at the expense of wider gains in the economy.
WEF - The Global Governance of Online Consumer Protection and E-commerce This paper offers a brief overview of the online consumer protection landscape and the actors within it. It identifies specific forms of online consumer protection and outlines efforts to boost regulatory coherence at the regional and global level – including through trade policy.
WEF - Paperless Trading: How Does It Impact the Trade System? This white paper, co-published with the United Nations Centre for Trade Facilitation and e-Business (UN/CEFACT), provides an overview of the efforts governments are making to ensure interoperability of emerging paperless trading systems, and offers inputs for future developments.
WEF - Making Deals in Cyberspace: What’s the Problem? This White Paper aims to build the knowledge of current e-transaction and e-signature rules by evaluating how these apply in national and international commercial contexts. It aims to bridge perspectives from business, legal experts and trade policy-makers to deepen understanding on potential trade policy interventions that could boost regulatory coherence.