Timeline: The Development of Digital Trade Agreements
As more sectors of the economy go online, “digital trade” is emerging as a vital area of interest, with many governments implementing specific digital trade agendas that purportedly aim to promote growth of the ecommerce ecosystem, promote growth of local businesses, and enhance access to information. Accordingly, the scope of digital trade agreements has grown significantly over the last two decades, with a number of countries now entering into specific digital related agreements.
Unfortunately, trade agreements have also become fertile ground for large technology companies to lobby for favorable provisions that seek to limit the manner in which countries can regulate them.
In fact, digital trade rules pushed by Big Tech companies often have very little to do with “trade”. Provisions favored by Big Tech companies instead seek to ensure that they can continue to enjoy the benefits of a (historically) deregulated digital ecosystem including by limiting public oversight of new technologies such as AI. Rather than forging public interest rules that would build trust in the digital economy, thereby benefiting both consumers and businesses,
Big Tech companies have sought to use their vast resources and preferential access to governments and trade negotiations to try and establish a framework of global rules that seek to entrench their power, at the cost of consumer safety and people’s rights.
This timeline lists key events in the development of digital trade agreements from the late 1990s till date. It illustrates not only that the various rules favored by Big Tech companies (such as on free flow of data and disclosure of source code) are of relatively recent origin, but that many countries, including the U.S., are increasingly wary of entering into agreements that could limit their ability to regulate the technology ecosystem in public interest.
World Trade Organisation (WTO) members agree the Ecommerce Moratorium
The moratorium, under which countries agree not to impose customs duties on “electronic transmissions” continues to be extended every two years (except for a brief period in the early 2000s).
The WTO also agrees to establish a work programme, to examine trade related aspects arising from ecommerce.
The US and Korea sign a free trade agreement (KORUS)
Revised in 2010 and replaced by a newer version in 2019, the KORUS is the first agreement entered into by the US that contains provisions aimed at enabling easy cross-border data flows.
Together with the US-Japan Digital Trade Agreement signed in 2019, this is the only bilateral trade agreement signed by the US that includes such a provision.
US withdraws from the TPP
Following a massive grassroots campaign, the TPP did not receive majority support in the US Congress. The US withdrew from the TPP in January 2017.
Preparatory work begins for the World Trade Organisation’s Joint Statement Initiative on E-Commerce (JSI)
The WTOs Ministerial Conference in Buenos Aires fails to agree to move the Work Programme on Ecommerce from a discussion forum to concrete negotiation on digital trade rules. Accordingly, some countries decide to go their own way and start negotiations on digital trade in a plurilateral format.
The JSI, a controversial attempt at finding consensus on digital trade rules at the WTO consists of 71 WTO members who take part in initial exploratory work. However, a number of developing countries stay out of the JSI.
11 countries sign the Comprehensive and Progressive Agreement for Trans Pacific Partnership (CPTPP)
The CPTPP adopts most of the TPP text, with some changes to the digital trade chapter. Provisions on digital IP protections are removed and IP protection terms are shortened.
The agreement is the first multilateral trade agreement to include a host of problematic provisions on issues such as cross border data flows, localisation and access to source code amongst others.
By the end of 2024, the UK will become the 12th country to be part of the CPTPP following ratification of its accession to the agreement.
Signing of the US-Mexico-Canada FTA (USMCA)
The USMCA replaced and updated the North Atlantic Free Trade Agreement (1994) by adding new sections on intellectual property and digital trade amongst others.
Following significant corporate pressure, the agreement borrows many of its newer provisions, particularly those concerning digital trade, from the CPTPP.
The USMCA is controversial in including many pro-Big Tech provisions including on issues such as intermediary liability, data flows, and access to source code.
The agreement was last revised in 2019 and the parties are scheduled to review the continuation of the agreement in 2026.
Negotiations for the JSI begin
76 members of the WTO commence negotiations on a controversial plurilateral agreement on ecommerce.
Japan proposes the concept of “data free flow with trust” at the World Economic Forum Annual Meeting.
The concept of “data free flow with trust” ostensibly seeks to enable cross country data flows, while accounting for competing interests such as privacy and intellectual property protections.
The US and Japan sign a Digital Trade Agreement
Purportedly seeking to establish “high standards” for digital trade, the agreement largely borrows from the corporate friendly provisions seen in the USMCA.
The ecommerce related chapter is the most detailed compared to all previous bilateral agreements entered into by the US. It includes provisions on a host of controversial issues such as cross border data flows, access to source code, intermediary liability and cryptography.
Australia and Singapore sign a Digital Economy Agreement (SADEA)
The agreement “upgrades” the digital trade arrangements between the two countries under the CPTPP and Singapore-Australia FTA by including a host of new digital related provisions, including on issues such as data flows, source code, cryptography, AI regulation, and digital identities amongst others.
15 countries (including China) sign the Regional Comprehensive Economic Partnership (RCEP)
Conceived at an ASEAN summit in 2011, negotiations were launched in 2012. India was part of the negotiations but dropped out in November 2019.
Bangladesh, Hong Kong, Sri Lanka, and Chile have applied for accession, while the UK is said to be assessing membership.
The RCEP contains controversial provisions on issues such as cross border data flows, ecommerce moratorium amongst others. However, the agreement imposes only “soft” obligations in many respects implying many obligations are non-binding. The ECommerce chapter is also not subject to dispute resolution, thereby weakening the scope of commitments. In addition, the scope of exceptions and permitted derogations is greater than in the CPTPP (thereby providing greater latitude to domestic regulation of the digital ecosystem).
Interestingly, the agreement does not contain provisions on source code and non-discriminatory treatment of digital goods.
3 countries - Chile, New Zealand and Singapore - sign the Digital Economy Partnership Agreement (DEPA)
DEPA is seen by some as a new type of trade agreement in that it focuses entirely on the digital ecosystem.
South Korea joined as a member in 2024. China's accession process began in 2022. Other countries such as Canada, Costa Rica, Peru, the UAE and El Salvador are also in the process of joining,
The agreement contains a number of controversial and pro-business provisions on issues such as cross border data flows and access to source code, amongst others. These contain language similar to that in the CPTPP and USMCA. The agreement also covers several issues previously not seen in trade agreements including provisions on digital IDs and AI regulation.
UK and Singapore sign a digital economy agreement (SUKDEA)
The agreement, which is touted as one of the most innovative trade agreements, restricts the ability of governments to regulate the digital economy in a number of ways by including a host of corporate friendly provisions including on data flows, source code and open government data.
The Global Cross Border Privacy Rules (CBPR) Forum is established vide the Global CBPR Declaration
The initiative builds on the existing Asia Pacific Economic Cooperation CBPR system with a view to promote interoperability between the data protection regimes of different countries and therefore promote cross border data flows.
The system essentially comprises a voluntary framework for organizations to demonstrate compliance with certain data protection principles. Its efficacy and ability to protect privacy of users/consumers has however been questioned.
The US launches negotiations for the Indo-Pacific Economic Framework for Prosperity (IPEF)
IPEF negotiations include 14 countries, with negotiations focussing on 4 “pillars”, each of which is to constitute a separate agreement. The first pillar, trade, includes a chapter on issues concerning the digital economy.
There is significant lobbying by Big Tech groups to include corporate friendly provisions modeled on the USMCA in this agreement. However, this faces push-back from many progressive civil society organizations.
As of date, there is no agreement on the digital trade chapter and no date set for negotiations to be completed.
G20 leaders summit in Tokyo issues the Osaka Declaration on Digital Economy
The Osaka Declaration launches the Osaka track, which aims to intensify efforts to forge rules on international data flows and localisation amongst other issues.
A number of developing countries refuse to sign onto the Osaka declaration.
The US Trade Representative (USTR) announces that it will no longer support several controversial provisions at the WTO’s JSI
Following years of campaigning by progressive organizations, the Biden administration pivots on previous US positions at the JSI.
Provisions on access to source code, data flows and localisation are seen as restricting the ability of the US government to regulate the digital ecosystem.
The change in US policy signals a significant shift - away from the liberalizing digital trade policies championed by the US since the TPP, which is welcomed by digital rights groups from around the world.
37 African countries adopt the Digital Protocol to the African Continental Free Trade Area (AfCFTA)
The Digital Protocol aims to create a harmonized digital economy in Africa.
It includes a number of business friendly provisions including on controversial issues such as data flows (that are no longer being supported by countries such as the United States)
Many commentators have pointed out that by signing such a corporate friendly agreement, African countries are giving up their ability to regulate the digital ecosystem in public interest.
The WTOs 13th Ministerial Conference extends the E-Commerce Moratorium, possibly for the final time.
Together with an extension of the Moratorium, countries agreed to reinvigorate negotiations around the Work Programme on ECommerce, including by focussing on the development dimensions of e-commerce.
Co-convenors of the WTOs JSI release a “stabilized” text.
The stabilized text excludes controversial provisions on source code disclosure, localisation, data flows and cryptography. Nonetheless, several countries involved in the negotiations including the US, Brazil and Indonesia, express their unhappiness at different provisions in the text.
The future of the JSI is uncertain with a lack of clarity on whether and how it will be adopted at the WTO as well as whether there will be further changes in the text of the agreement.
World Trade Organisation (WTO) members agree the Ecommerce Moratorium
The moratorium, under which countries agree not to impose customs duties on “electronic transmissions” continues to be extended every two years (except for a brief period in the early 2000s).
The WTO also agrees to establish a work programme, to examine trade related aspects arising from ecommerce.
The US and Korea sign a free trade agreement (KORUS)
Revised in 2010 and replaced by a newer version in 2019, the KORUS is the first agreement entered into by the US that contains provisions aimed at enabling easy cross-border data flows.
Together with the US-Japan Digital Trade Agreement signed in 2019, this is the only bilateral trade agreement signed by the US that includes such a provision.
US withdraws from the TPP
Following a massive grassroots campaign, the TPP did not receive majority support in the US Congress. The US withdrew from the TPP in January 2017.
Preparatory work begins for the World Trade Organisation’s Joint Statement Initiative on E-Commerce (JSI)
The WTOs Ministerial Conference in Buenos Aires fails to agree to move the Work Programme on Ecommerce from a discussion forum to concrete negotiation on digital trade rules. Accordingly, some countries decide to go their own way and start negotiations on digital trade in a plurilateral format.
The JSI, a controversial attempt at finding consensus on digital trade rules at the WTO consists of 71 WTO members who take part in initial exploratory work. However, a number of developing countries stay out of the JSI.
11 countries sign the Comprehensive and Progressive Agreement for Trans Pacific Partnership (CPTPP)
The CPTPP adopts most of the TPP text, with some changes to the digital trade chapter. Provisions on digital IP protections are removed and IP protection terms are shortened.
The agreement is the first multilateral trade agreement to include a host of problematic provisions on issues such as cross border data flows, localisation and access to source code amongst others.
By the end of 2024, the UK will become the 12th country to be part of the CPTPP following ratification of its accession to the agreement.
Signing of the US-Mexico-Canada FTA (USMCA)
The USMCA replaced and updated the North Atlantic Free Trade Agreement (1994) by adding new sections on intellectual property and digital trade amongst others.
Following significant corporate pressure, the agreement borrows many of its newer provisions, particularly those concerning digital trade, from the CPTPP.
The USMCA is controversial in including many pro-Big Tech provisions including on issues such as intermediary liability, data flows, and access to source code.
The agreement was last revised in 2019 and the parties are scheduled to review the continuation of the agreement in 2026.
Negotiations for the JSI begin
76 members of the WTO commence negotiations on a controversial plurilateral agreement on ecommerce.
Japan proposes the concept of “data free flow with trust” at the World Economic Forum Annual Meeting.
The concept of “data free flow with trust” ostensibly seeks to enable cross country data flows, while accounting for competing interests such as privacy and intellectual property protections.
The US and Japan sign a Digital Trade Agreement
Purportedly seeking to establish “high standards” for digital trade, the agreement largely borrows from the corporate friendly provisions seen in the USMCA.
The ecommerce related chapter is the most detailed compared to all previous bilateral agreements entered into by the US. It includes provisions on a host of controversial issues such as cross border data flows, access to source code, intermediary liability and cryptography.
Australia and Singapore sign a Digital Economy Agreement (SADEA)
The agreement “upgrades” the digital trade arrangements between the two countries under the CPTPP and Singapore-Australia FTA by including a host of new digital related provisions, including on issues such as data flows, source code, cryptography, AI regulation, and digital identities amongst others.
15 countries (including China) sign the Regional Comprehensive Economic Partnership (RCEP)
Conceived at an ASEAN summit in 2011, negotiations were launched in 2012. India was part of the negotiations but dropped out in November 2019.
Bangladesh, Hong Kong, Sri Lanka, and Chile have applied for accession, while the UK is said to be assessing membership.
The RCEP contains controversial provisions on issues such as cross border data flows, ecommerce moratorium amongst others. However, the agreement imposes only “soft” obligations in many respects implying many obligations are non-binding. The ECommerce chapter is also not subject to dispute resolution, thereby weakening the scope of commitments. In addition, the scope of exceptions and permitted derogations is greater than in the CPTPP (thereby providing greater latitude to domestic regulation of the digital ecosystem).
Interestingly, the agreement does not contain provisions on source code and non-discriminatory treatment of digital goods.
3 countries - Chile, New Zealand and Singapore - sign the Digital Economy Partnership Agreement (DEPA)
DEPA is seen by some as a new type of trade agreement in that it focuses entirely on the digital ecosystem.
South Korea joined as a member in 2024. China's accession process began in 2022. Other countries such as Canada, Costa Rica, Peru, the UAE and El Salvador are also in the process of joining,
The agreement contains a number of controversial and pro-business provisions on issues such as cross border data flows and access to source code, amongst others. These contain language similar to that in the CPTPP and USMCA. The agreement also covers several issues previously not seen in trade agreements including provisions on digital IDs and AI regulation.
UK and Singapore sign a digital economy agreement (SUKDEA)
The agreement, which is touted as one of the most innovative trade agreements, restricts the ability of governments to regulate the digital economy in a number of ways by including a host of corporate friendly provisions including on data flows, source code and open government data.
The Global Cross Border Privacy Rules (CBPR) Forum is established vide the Global CBPR Declaration
The initiative builds on the existing Asia Pacific Economic Cooperation CBPR system with a view to promote interoperability between the data protection regimes of different countries and therefore promote cross border data flows.
The system essentially comprises a voluntary framework for organizations to demonstrate compliance with certain data protection principles. Its efficacy and ability to protect privacy of users/consumers has however been questioned.
The US launches negotiations for the Indo-Pacific Economic Framework for Prosperity (IPEF)
IPEF negotiations include 14 countries, with negotiations focussing on 4 “pillars”, each of which is to constitute a separate agreement. The first pillar, trade, includes a chapter on issues concerning the digital economy.
There is significant lobbying by Big Tech groups to include corporate friendly provisions modeled on the USMCA in this agreement. However, this faces push-back from many progressive civil society organizations.
As of date, there is no agreement on the digital trade chapter and no date set for negotiations to be completed.
G20 leaders summit in Tokyo issues the Osaka Declaration on Digital Economy
The Osaka Declaration launches the Osaka track, which aims to intensify efforts to forge rules on international data flows and localisation amongst other issues.
A number of developing countries refuse to sign onto the Osaka declaration.
The US Trade Representative (USTR) announces that it will no longer support several controversial provisions at the WTO’s JSI
Following years of campaigning by progressive organizations, the Biden administration pivots on previous US positions at the JSI.
Provisions on access to source code, data flows and localisation are seen as restricting the ability of the US government to regulate the digital ecosystem.
The change in US policy signals a significant shift - away from the liberalizing digital trade policies championed by the US since the TPP, which is welcomed by digital rights groups from around the world.
37 African countries adopt the Digital Protocol to the African Continental Free Trade Area (AfCFTA)
The Digital Protocol aims to create a harmonized digital economy in Africa.
It includes a number of business friendly provisions including on controversial issues such as data flows (that are no longer being supported by countries such as the United States)
Many commentators have pointed out that by signing such a corporate friendly agreement, African countries are giving up their ability to regulate the digital ecosystem in public interest.
The WTOs 13th Ministerial Conference extends the E-Commerce Moratorium, possibly for the final time.
Together with an extension of the Moratorium, countries agreed to reinvigorate negotiations around the Work Programme on ECommerce, including by focussing on the development dimensions of e-commerce.
Co-convenors of the WTOs JSI release a “stabilized” text.
The stabilized text excludes controversial provisions on source code disclosure, localisation, data flows and cryptography. Nonetheless, several countries involved in the negotiations including the US, Brazil and Indonesia, express their unhappiness at different provisions in the text.
The future of the JSI is uncertain with a lack of clarity on whether and how it will be adopted at the WTO as well as whether there will be further changes in the text of the agreement.