Digital trade policy: TPP as minimum standard or more? (lightning session)

Event report

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Mr Kenta Mochizuki, from Yahoo Japan Corporation, presented and introduced digital globalisation TPP. TPP was ratified by both the USA (GDP 60%) and Japan (GDP 18%) which is a prerequisite of key provisions for prohibition from imposing custom duties on electronic transmissions and the non-discriminatory treatment of digital product.

He said there is a need to achieve a legitimate public policy objective and that TPP is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade and that it does not impose restrictions on transfers of information greater than which is required to achieve the objective of cross-border transfer of information by electronic means. Cross-border transfer of information includes personal information protection. A clause should be included recognising that the parties may take different legal approaches to protecting personal information and that each TPP party should encourage the development of mechanisms to promote compatibility between these different regimes. To this end, the parties shall endeavour to exchange information on any such mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them.

Mr Mochizuki mentioned that neither such wording in WTO Agreements nor WTO jurisprudence leaves broad room for different interpretation on what kind of public policy objective is legitimate. Similar to WTO’s agreement on technical barriers to trade (TBT). He said that General Agreement on Tariffs and Trade (GATT) would also be applicable in relation to Article 14.

In addition, the panel stated: ‘the absence of consistency in this regard may lead to a conclusion that the measures in question are applied in a manner that constitutes arbitrary and unjustifiable discrimination between countries where like conditions prevail and/or disguised restriction on trade’.

He said that the prohibition of data localisation shall require a covered person to use or locate computing facilities in that party’s territory as a condition for conducting business in that territory. The fundamental value of the Internet is maintaining the free flow of information globally which is indispensable and it should be explicitly provided in international trade agreements. The ‘public policy objective’ should be discussed in the field of Internet governance. Unjustifiable data localisation should be prohibited, while respecting the appropriate, non-excessive protection of privacy and personal information. There is a need as well for more harmonisation between traditional international trade negotiations among governments and Internet governance discussion among multi-stakeholders is necessary.

by Hamza Ben Mehrez, Internet Society Tunisia