Boundaries and best practices for inclusive digital trade

Event report

[Read more session reports and live updates from the 2016 WTO Public Forum.]

This workshop, organised by Electronic Frontier Foundation, brought together experts from civil society, business, and academia to examine the extent to which an inclusive trade policy process inspired by multistakeholderism could redefine the boundaries and promote best practices in digital trade policy.

Jeremy Malcolm, Senior Global Policy Analyst at the Electronic Frontier Foundation and session moderator, started the session with emphasising three challenges for trade governance: inclusiveness, transparency, and accountability.

Maryant Fernández, Advocacy Manager at the European Digital Rights, discussed the aspects related to the openness of trade negotiations, including the Trade in Services Agreement (TiSA), the Transatlantic Trade and Investment Partnership (TTIP), and the EU-Canada Comprehensive Economic and Trade Agreement (CETA). She outlines pros and cons of different policy options throughout the decision making process: during the pre-negotiation phase (stakeholder selection, consultation, impact assessments), the negotiating phase (e.g. importance of multilevel consultation), and the implementation phase (challenges and opportunities with regard to monitoring and enforcement).

Fernández focused in particular on the EU approach to transparency in global trade negotiations. She noted that the main challenge is to improve access to documents.  Civil society uses more and more freedom of information requests in an attempt to gain access to trade negotiations documents. However, requests for information usually result in very little text to be released. The lack of information on trade negotiations is also a problem of legitimacy.

Nick Ashton-Hart, Consultant and Associate Fellow at the Geneva Centre for Security Policy, discussed the ways and means to advance e-diplomacy negotiations in Geneva and globally. There is a need to increase awareness how the Internet functions. Ashton-Hart warned about the risk of spill-over of other issues to the trade space. Trade negotiators should deal with trade issues. Technological, human rights, and others aspects of digital agenda should be addressed in other policy spaces, he argued.

Andrew Crosby, Managing Director of the International Centre for Trade and Sustainable Development (ICTSD), explained the transforming context of international trade. As the system is fragmented and can be seen as a ‘fluid, expanding, complex’ organism, the question arises as to where and how its interface can be strengthened. Not only do we need more information about the different partners, players, and arrangements, we also need to be aware of contextually relevant information.

Crosby went on to explain the ICTSD E15 initiative that examines what is needed for the trade system of the future. In this regard, he was not convinced that any of the existing models are the right ones. As we are moving from a state-centric to a multistakeholder approach, we might need other governance mechanisms, such as exo-governance, private standards, or market-based governance. Finally, he pointed to the fundamental challenge, the accelerating pace of change in business, labour, and finance.

Jovan Kurbalija, Head of the Geneva Internet Platform, then related these issues to the typical Geneva diplomat, who has to multitask, and follow many sessions on many different topics. In this sense, small missions face enormous complexity, and in the midst of this complexity, digital policy issues are not always high on the list of priorities.

Kurbalija pointed to the underlying architectural difference between trade and digital policy. While the Internet started as a form of governance without governments – governments only entered the diplomatic process during the World Summit on the Information Society (WSIS) in the early 2000s – trade has been intergovernmental for centuries. This architectural difference should be kept in mind.

Yet, when discussing digital policy, from whichever perspective, diplomats need to understand the basic functionality of the Internet. The key is to provide a translation between the technical and diplomatic communities. Furthermore, the fact that digital policy is discussed in so many policy fields means that we need to create boundary spanners for cross-fertilisation between sectors. We should neither re-invent the wheel, nor discuss things in the wrong places, but we do need to be aware of what’s happening in other sectors.

Sean Flynn, Professor at the American University, Washington College of Law, looked at the issue of inclusion from a participation theory perspective, and reflected on the question of how the WTO is going to organise the discussion and organise itself with reference to the broader public.

He then highlighted three main purposes for civil participation in WTO policy processes:

• Legitimacy: Documents are often not considered legitimate without some form of transparency in the policy-making process.
• Prevention of capture: The policy process should not be captured only by one part of society (e.g. the corporate sector), as it will then result in unbalanced and ineffective agreements.
• Expertise: Experts need to be involved in policy-making processes, which will contribute in better agreements.

Flynn compared and contrasted different systems at the national, bilateral, and multilateral levels to examine the degree of participatory inclusion in their policy processes, and raised the question of how the three elements of inclusion can flow into WTO structures around the topic of e-commerce in the future.

Daniel Blockert, Swedish Ambassador to the WTO, reminded everyone about the difference between the WTO and many other institutions in Geneva that might seem more transparent and participatory; the WTO is producing legally binding instruments. Sweden is attempting to strengthen transparency within the European Union, yet he emphasised that transparency is a two-way stream. Although documents are increasingly being made available, not many people actually make the effort to read them.

Jean-Baptiste Velut, Associate Professor at the Université Sorbonne Nouvelle, closed the session by outlining the problem of many new regional trade agreements (RTAs):

• New RTAs cover a broader range of issues than more traditional ones, which has ‘multilevel consequences at several levels of governance’.
• There is an ‘ad hoc approach’ to stakeholder consultations:
  • Relations between RTAs, international organisations, and NGOs are often ill-defined, and the wheel needs to be reinvented for every negotiation.
  • Consultation is seen as a moment, and not as a sustained process.
  • There are low standards for transparency.

These trends need to be addressed by a comprehensive approach to better include stakeholders.

by Barbara Rosen Jacobson