Notes for India as the digital trade juggernaut rolls on

The article by Arindrajit Basu was published in the Hindu on February 8, 2022

Despite the cancellation of the Twelfth Ministerial Conference (MC12) of the World Trade Organization (WTO) late last year (scheduled date, November 30, 2021-December 3, 2021) due to COVID-19, digital trade negotiations continue their ambitious march forward. On December 14, Australia, Japan, and Singapore, co-convenors of the plurilateral Joint Statement Initiative (JSI) on e-commerce, welcomed the ‘substantial progress’ made at the talks over the past three years and stated that they expected a convergence on more issues by the end of 2022.

Holding out

But therein lies the rub: even though JSI members account for over 90% of global trade, and the initiative welcomes newer entrants, over half of WTO members (largely from the developing world) continue to opt out of these negotiations. They fear being arm-twisted into accepting global rules that could etiolate domestic policymaking and economic growth. India and South Africa have led the resistance and been the JSI’s most vocal critics. India has thus far resisted pressures from the developed world to jump onto the JSI bandwagon, largely through coherent legal argumentation against the JSI and a long-term developmental vision. Yet, given the increasingly fragmented global trading landscape and the rising importance of the global digital economy, can India tailor its engagement with the WTO to better accommodate its economic and geopolitical interests?

Global rules on digital trade

The WTO emerged in a largely analogue world in 1994. It was only at the Second Ministerial Conference (1998) that members agreed on core rules for e-commerce regulation. A temporary moratorium was imposed on customs duties relating to the electronic transmission of goods and services. This moratorium has been renewed continuously, to consistent opposition from India and South Africa. They argue that the moratorium imposes significant costs on developing countries as they are unable to benefit from the revenue customs duties would bring.

The members also agreed to set up a work programme on e-commerce across four issue areas at the General Council: goods, services, intellectual property, and development. Frustrated by a lack of progress in the two decades that followed, 70 members brokered the JSI in December 2017 to initiate exploratory work on the trade-related aspects of e-commerce. Several countries, including developing countries, signed up in 2019 despite holding contrary views to most JSI members on key issues. Surprise entrants, China and Indonesia, argued that they sought to shape the rules from within the initiative rather than sitting on the sidelines.

India and South Africa have rightly pointed out that the JSI contravenes the WTO’s consensus-based framework, where every member has a voice and vote regardless of economic standing. Unlike the General Council Work Programme, which India and South Africa have attempted to revitalise in the past year, the JSI does not include all WTO members. For the process to be legally valid, the initiative must either build consensus or negotiate a plurilateral agreement outside the aegis of the WTO.

India and South Africa’s positioning strikes a chord at the heart of the global trading regime: how to balance the sovereign right of states to shape domestic policy with international obligations that would enable them to reap the benefits of a global trading system.

A contested regime

There are several issues upon which the developed and developing worlds disagree. One such issue concerns international rules relating to the free flow of data across borders. Several countries, both within and outside the JSI, have imposed data localisation mandates that compel corporations to store and process data within territorial borders. This is a key policy priority for India. Several payment card companies, including Mastercard and American Express, were prohibited from issuing new cards for failure to comply with a 2018 financial data localisation directive from the Reserve Bank of India. The Joint Parliamentary Committee (JPC) on data protection has recommended stringent localisation measures for sensitive personal data and critical personal data in India’s data protection legislation. However, for nations and industries in the developed world looking to access new digital markets, these restrictions impose unnecessary compliance costs, thus arguably hampering innovation and supposedly amounting to unfair protectionism.

There is a similar disagreement regarding domestic laws that mandate the disclosure of source codes. Developed countries believe that this hampers innovation, whereas developing countries believe it is essential for algorithmic transparency and fairness — which was another key recommendation of the JPC report in December 2021.

India’s choices

India’s global position is reinforced through narrative building by political and industrial leaders alike. Data sovereignty is championed as a means of resisting ‘data colonialism’, the exploitative economic practices and intensive lobbying of Silicon Valley companies. Policymaking for India’s digital economy is at a critical juncture. Surveillance reform, personal data protection, algorithmic governance, and non-personal data regulation must be galvanised through evidenced insights,and work for individuals, communities, and aspiring local businesses — not just established larger players.

Hastily signing trading obligations could reduce the space available to frame appropriate policy. But sitting out trade negotiations will mean that the digital trade juggernaut will continue unchecked, through mega-regional trading agreements such as the Regional Comprehensive Economic Partnership (RCEP) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). India could risk becoming an unwitting standard-taker in an already fragmented trading regime and lose out on opportunities to shape these rules instead.

Alternatives exist; negotiations need not mean compromise. For example, exceptions to digital trade rules, such as ‘legitimate public policy objective’ or ‘essential security interests’, could be negotiated to preserve policymaking where needed while still acquiescing to the larger agreement. Further, any outcome need not be an all-or-nothing arrangement. Taking a cue from the Digital Economy Partnership Agreement (DEPA) between Singapore, Chile, and New Zealand, India can push for a framework where countries can pick and choose modules with which they wish to comply. These combinations can be amassed incrementally as emerging economies such as India work through domestic regulations.

Despite its failings, the WTO plays a critical role in global governance and is vital to India’s strategic interests. Negotiating without surrendering domestic policy-making holds the key to India’s digital future.

Arindrajit Basu is Research Lead at the Centre for Internet and Society, India. The views expressed are personal. The author would like to thank The Clean Copy for edits on a draft of this article.