What is the Joint Statement Initiative on E-Commerce?

Due to the growing importance of the digital economy in the late 1990s, issues concerning digital trade began to be discussed at the World Trade Organisation (WTO). This led to the adoption of a Declaration on Global Electronic Commerce at the Second WTO Ministerial Conference in 1998.^[1] This declaration, in addition to establishing a moratorium on customs duties on digital transmissions, called on WTO members to “examine all trade-related issues relating to global electronic commerce.”

Pursuant thereto, the WTO adopted the Work Programme on E-Commerce to enable detailed discussions on issues related to e-commerce in different WTO bodies. Despite the exploratory nature of the initiative (which was not empowered to produce binding rules), negotiations reached an impasse, and discussions were suspended in 1999.^[2] Thereafter, despite multiple attempts at restarting negotiations, no substantive results were achieved (except on the issue of continuing a moratorium on customs duties on electronic transmissions).^[3]

Accordingly, various members of the WTO, led by the U.S., began to conceive of new approaches to creating binding global rules on digital trade-related issues. This process led to a Joint Statement on E-Commerce being issued at the Eleventh WTO Ministerial Conference held in Buenos Aires, Argentina. Seventy-one WTO members published a joint statement to “initiate exploratory work together toward future WTO negotiations” on e-commerce.^[4]

“E-commerce” is generally thought of as the process of buying and selling goods and services online. While there is no single definition of the term, the WTO Work Programme established in 1998 following the Declaration on Global Economic Commerce explains that “…the term ‘electronic commerce’ is understood to mean the production, distribution, marketing, sale or delivery of goods and services by electronic means”.^[5] In the context of international trade, the phrase is often used interchangeably with “digital trade”.^[6]

The multiplicity of definitions of the phrase implies a lack of clarity over what subjects are to be covered under e-commerce negotiations, which has complicated international debates on the issue.^[7] The wide wording of the phrase in WTO discussions has also led to the use of the term to cover not just prosaic issues to enhance online transactions, but also a range of subjects concerning the digital ecosystem, including developmental issues. Thus, the term has almost come to be used as a catch-all phrase to encompass the entirety of the digital economy, including issues such as regulatory models, competition, digital IDs, customs, taxation, privacy, infrastructure and connectivity, cybersecurity, etc.^[8] The implications of e-commerce negotiations therefore can be felt on all sections of the economy that are, or will be, networked.

Following a two-year period of negotiations, another joint statement was issued by 76 members of the WTO on January 25, 2019, whereby they announced their intent to “commence WTO negotiations on trade-related aspects of electronic commerce”.^[9] The initiative sought to “achieve a high standard outcome that builds on existing WTO agreements and frameworks with the participation of as many WTO Members as possible.”

Membership of the Joint Statement Initiative (JSI) has increased since its launch. As of February 2023, the JSI comprises 89 WTO members,^[10] more than half of the WTO’s membership. However, it is notable that only seven African countries and four least developed countries are involved in the negotiations. The Caribbean and Pacific Island states are not part of the initiative at all.^[11] Countries such as India, South Africa, Pakistan, Vietnam, Bolivia, and Ecuador are also not part of the initiative.

Negotiations for the JSI are led by three co-convenors — Australia, Japan, and Singapore — and are held with the support of the WTO. Members of the WTO that are not part of the initiative can be invited to attend some discussions.

What Issues Are Being Discussed Under the JSI?

The JSI covers six main themes, each divided into several sub-themes.^[12]

These include:

1. Enabling E-Commerce: covers matters that facilitate the adoption of a harmonised legal framework to promote electronic transactions. This theme seeks to implement rules on electronic authentication and e-signatures, electronic contracts, electronic invoicing, and electronic payment services.
2. Openness and E-Commerce: covers issues of “non-discrimination” and limiting liability for intermediaries, cross-border transfers of data, the location of computing facilities, customs duties on electronic transmissions, and access to internet and data.
3. Trust and E-Commerce: covers issues of online consumer protection, unsolicited commercial communications (spam), privacy and data protection, and protection of source code and ICT products that use cryptography.
4. Cross-Cutting Issues: covers issues of transparency, electronic availability of trade-related information, domestic regulation, and international cooperation.
5. Telecommunications: seeks to update a WTO Reference Paper on telecom services covering issues such as interconnection, universal services, licensing, spectrum allocation, etc.
6. Market Access: covers issues of access to services markets, temporary entry and sojourn of personnel related to e-commerce, etc.

What Is the Status of Negotiations?

Negotiations for the JSI are conducted based on text proposed by members and discussed in small meetings, focus groups, and plenary sessions.

A consolidated negotiating text for the JSI was first released in 2020, with three updated versions being circulated until December 2022.^[13]

Participants in the JSI have reached consensus on the following issues: online consumer protection, electronic signatures and authentication, unsolicited commercial electronic messages (spam), open government data, electronic contracts, transparency, and paperless trading.^[14]

Negotiations are ongoing on issues concerning open internet access, source code, customs duties, electronic transactions frameworks, e-invoicing, cybersecurity, privacy, data localisation, and telecommunications.^[15]

Negotiations are now said to be at a “critical stage” and may possibly be concluded by the next WTO Ministerial Conference scheduled to be held in Abu Dhabi in February 2024.^[16]

Why Is the JSI Criticised?

The JSI is an attempt to implement binding international rules on a number of issues critical to the digital ecosystem. Proponents of the JSI argue that global rules on e-commerce are required in order to harmonise digital economy-related regulations, thereby fostering certainty and predictability, which in turn can enable greater trade and investment in the e-commerce sector. International trade rules from the pre-digital era are seen as insufficient or inadequate to deal with the growing digitisation of all sorts of goods and services (for instance, they do not cover issues such as the restrictions on cross-border data flows or privacy), thus underscoring the need for new international rules to govern the digital ecosystem.

On the other hand, there has also been significant criticism of the terms of the JSI.

The JSI is largely seen as an initiative of developed countries, which aims to implement (liberalised) trading rules that benefit them (and by extension the big technology corporations that are typically based in the Global North) by restricting the regulatory space for governments in the digital economy.^[17]

For instance, proposals being discussed at the JSI are as follows:

• The adoption of binding rules that enable governments to regulate e-commerce only through necessary and minimal interventions.^[18] This would require governments to justify the adoption of any regulatory intervention targeting the digital ecosystem using an extremely high bar.
• Requirements for the adoption of domestic law concerning electronic authentication, electronic contracts, e-signatures, and electronic invoicing. Developing and least developed countries may not have the capacity or technology to implement and enforce such laws. Enforcement of such laws may also put domestic companies at a competitive disadvantage compared to foreign firms, which may already be using such technology.^[19]
• Rules requiring free flows of data. These rules could lock in requirements to enable the free flow of data subject to very limited exceptions. This can affect the way in which countries can regulate data, protect the privacy of users, and implement mechanisms to enable development of the local digital ecosystem.^[20]
• Restrictions on implementing customs duties on electronic transmissions. This could reduce the space for countries to regulate the import of certain types of goods (such as luxury products), while also preventing the government from pursuing domestic industrial policy goals. Further, countries may be unable to impose taxes and other charges on import of electronic goods/services, therefore possibly foregoing revenues. It has been estimated that this could potentially lead to revenue losses estimated at USD 10 billion per annum for developing countries.^[21]
• Restrictions on access to source code by regulators and independent entities as a condition for market access. This could lead to safety, bias, and privacy-related problems arising from the use of AI and other such technologies^[22] while also creating dependencies on foreign digital technologies by limiting technology transfers.^[23]
• Seemingly innocuous proposals such as that for electronic availability of trade-related information. These do not adequately consider capacity-related issues in developed and developing countries.

Further, the JSI has been subject to various process-related criticisms, notably around the lack of transparency in its functioning. Negotiating text of the JSI is often not published or made publicly available, which limits the ability for stakeholders such as civil society groups to both monitor and participate in proceedings. Various members of the WTO (notably India and South Africa)^[24] as well as numerous commentators have also questioned the legitimacy of the Joint Statement process itself, the mechanisms for adopting its outcomes, and the diversion of resources towards such initiatives.^[25]

Conclusion

The Joint Statement Initiative is a framework for negotiation of binding international rules pertaining to the digital ecosystem. The JSI could, in due course, become an international trade agreement defining common rules pertaining to e-commerce and creating binding obligations for signatory countries. The implementation of binding norms pertaining to regulation of the technology ecosystem may, however, be imprudent given the fast-paced nature of technological development.

Civil society organisations around the globe have also identified a number of risks for digital rights arising from the initiative. For example, the initiative risks limiting the ability of governments to adequately protect the personal data of individuals or scrutinise algorithms to ensure compliance with domestic regulation.  A JSI outcome that does not protect people’s digital rights could be a blow to an already fragile WTO. It is therefore essential that participating countries design a deal that puts people at its centre and fully protects their rights.

In any event, countries participating in the JSI should make the negotiations more transparent by publishing their proposals and the consolidated texts. This will enable civil society organisations to provide meaningful recommendations to negotiators. 

Resources

1. WTO, Joint Initiative on E-Commerce, https://www.wto.org/english/tratop_e/ecom_e/joint_statement_e.htm#background
2. Deborah James, 12 Reasons to Oppose Rules on Digital Commerce at the WTO, Huffington Post, May 12, 2017, https://ourworldisnotforsale.net/2019/WTO_12_reasons_v2.pdf
3. Rashmi Banga, Joint Statement Initiative on E-Commerce (JSI): Economic and Fiscal Implications for the South, UNCTAD Research Paper No. 58, 2021, United Nations, https://ourworldisnotforsale.net/2021/UNCTAD_ser-rp-2021d1_en.pdf
4. UNCTAD, What is at Stake for Developing Countries in Trade Negotiations on E-Commerce? The Case of the Joint Statement Initiative, United Nations, 2021, https://unctad.org/system/files/official-document/ditctncd2020d5_en.pdf
5. Our World is Not For Sale, Digital Trade Negotiations at the WTO, https://ourworldisnotforsale.net/digital
6. Yasmi Ismail, The Evolving Context and Dynamics of the WTO Joint Initiative on E-Commerce: The Fifth Year Stocktake and Prospects for 2023, IISD and CUTS International, Geneva, 2023, https://www.iisd.org/system/files/2023-04/wto-joint-initiative-e-commerce-fifth-year-stocktake-en.pdf
7. Yasmi Ismail, E-Commerce in the World Trade Organisation: History and latest developments in the negotiations under the Joint Statement, IISD and CUTS International, Geneva, 2020, https://www.iisd.org/system/files/publications/e-commerce-world-trade-organization-.pdf
8. Melinda St. Louis, Public Citizen Comments: Trade Policy in the Digital Economy Hearings, Public Citizen, December 14, 2022, https://www.citizen.org/article/public-citizen-comments-trade-policy-in-the-digital-economy-hearing/
9. Jane Kelsey, The Illegitimacy of Joint Statement Initiatives and Their Systemic Implications for the WTO, Journal of International Economic Law, Volume 25, Issue 1, March 2022, Pages 2–24, https://academic.oup.com/jiel/article/25/1/2/6533600

Footnotes

^[1] WTO, Declaration on Global Electronic Commerce, adopted on 20 May 1998 at the Second WTO Ministerial Conference in Geneva, WT/MIN(98)/DEC/2, 25 May 1998.

^[2] This is said to be due to the cross-cutting nature of issues related to e-commerce, which were therefore not amenable to be discussed in silos, as was the case with traditional trade in goods and services. Further, developing countries were hesitant to enter into binding rules on e-commerce for a variety of reasons including concerns with the fact that regulatory frameworks pertaining to the digital economy were still at their nascent stage. Generally speaking, it was felt that implementing binding rules at this stage could impact their economic and strategic interests.

^[3] Henry S Gao, Across the Great Wall: E-Commerce Joint Statement Initiative Negotiation and China, June 2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3695382

^[4] WTO, Joint Statement on Electronic Commerce, Ministerial Conference, Eleventh Session, Buenos Aires, 10–13 December 2017, WT/MIN(17)/60, 13 December 2017.

[5] WTO, E-commerce Jargon Buster, https://www.wto.org/e_com_e_lib/en/JargonBuster

[6] Yasmin Ismael, E-Commerce in the World Trade Organisation: History and latest developments in the negotiations under the Joint Statement, ISID and CUTS International, January 2020, https://www.iisd.org/system/files/publications/e-commerce-world-trade-organization-.pdf

[7] Ibid

[8] Deborah James, Twelve Reasons to Oppose Rules on Digital Commerce in the WTO, OWINFS, March 31, 2019, https://ourworldisnotforsale.net/2019/WTO_12_reasons_v2.pdf

^[9] WTO, Joint Statement on Electronic Commerce, WT/L/1056, 25 January 2019, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/L/1056.pdf&Open=True

^[10] WTO, Joint Initiative on E-commerce, https://www.wto.org/english/tratop_e/ecom_e/joint_statement_e.htm

^[11] DigWatch, The WTO Joint Statement Initiative on E-Commerce, Geneva Internet Platform, https://dig.watch/processes/wto-ecommerce

^[12] WTO, E-Commerce, https://www.wto.org/english/thewto_e/minist_e/mc12_e/briefing_notes_e/bfecom_e.htm. A total of over 35 issues are currently under discussions in the JSI negotiations. Henry S Gao, Across the Great Wall: E-Commerce Joint Statement Initiative Negotiation and China, June 2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3695382

^[13] Yasmin Ismael, The Evolving Context and Dynamics of the WTO Joint Initiative on E-Commerce: The Fifth Year stocktake and prospects for 2023, IISD and CUTS International, March 2023, https://www.iisd.org/system/files/2023-04/wto-joint-initiative-e-commerce-fifth-year-stocktake-en.pdf

^[14] WTO, E-Commerce, MC 12 Briefing Note, https://www.wto.org/english/thewto_e/minist_e/mc12_e/briefing_notes_e/bfecom_e.htm; WTO Joint Initiative on E-Commerce Statement by Ministers of Australia, Japan, Singapore, December 2021,  https://www.wto.org/english/news_e/news21_e/ji_ecom_minister_statement_e.pdf

^[15] WTO, E-Commerce, MC 12 Briefing Note, https://www.wto.org/english/thewto_e/minist_e/mc12_e/briefing_notes_e/bfecom_e.htm

^[16] Supra Note 9

^[17] Rashmi Banga, Joint Statement Initiative on E-Commerce: Economic and Fiscal Implications for the South, UNCTAD Research Paper No. 58, February 2021, https://ourworldisnotforsale.net/2021/UNCTAD_ser-rp-2021d1_en.pdf

^[18] Id.

^[19] Id.

^[20] Rishab Bailey and Smriti Parsheera, Data Localisation in India: Questioning the Means and Ends, NIPFP Working Paper 242/2018, April 2019, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3356617; Digital Trade Alliance, Consumer and Digital Rights Groups call on the International Joint Initiative on E-Commerce to Safeguard Data Protection and Privacy, https://www.beuc.eu/sites/default/files/publications/beuc-x-2020-112_-_global_statement_to_safeguard_data_protection_and_privacy_in_the_wto_joint_statement_initiative_on_e-commerce.pdf

^[21] Supra Note 13

^[22] Digital Trade Alliance, Source Code Disclosure and Free Trade Agreements, August 2023, https://dtalliance.org/2023/08/04/source-code-disclosure-and-free-trade-agreements/

^[23] Supra Note 13

^[24] WTO, The Legal Status of Joint Statement Initiative and Their Negotiated Outcomes, WT/GC/W/819, February 2021, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/GC/W819.pdf&Open=True

^[25] See for example, Jane Kelsey, The Illegitimacy of the Joint Statement Initiatives and Their Systemic Implications for the WTO, Journal of International Economic Law, Vol 25 Issue 1, March 2020, https://academic.oup.com/jiel/article/25/1/2/6533600; Rashmi Banga, Joint Statement Initiative on E-Commerce: Economic and Fiscal Implications for the South, UNCTAD Research Paper No. 58, February 2021, https://ourworldisnotforsale.net/2021/UNCTAD_ser-rp-2021d1_en.pdf