[CTC] Attempt to Address Concerns in E-Commerce JSI

[Arthur Stamoulis]

Yikes — doesn’t bode well for U.S. “digital trade” proposals in IPEF and other pending trade deals…


WASHINGTON TRADE DAILY
12/5/2022
Attempt to Address Concerns in JSI
 
Geneva – Several members of the plurilateral Joint Statement Initiative) group, including the
United States, are circulating what appears to be a middle-ground proposal on cross-border data flows,
in an attempt to break the current impasse on the growing opposition from many JSI members to the
inclusion of cross-border data flows, WTD has learned.
 
In a proposal circulated on Friday, JSI members including the United States, Australia, Canada,
Japan, Korea, Singapore, Taipei and the United Kingdom clarified what they intend on cross-border
data flows is palatable to other JSI members such as the European Union, Russia and China among
others.
 
The plan, as seen by WTD, says that their proposal “is subject to the consideration of several
cross-cutting issues that Members have highlighted in the negotiations.” The sponsors said it adheres to
several specific issues raised by some JSI members. The issues include:
 
Members have noted that they would expect security, general and prudential exceptions
to apply.
Members have expressed their intention that commitments would not apply to
government procurement; a service supplied in the exercise of governmental authority; or, except as
otherwise indicated, information held or processed by or on behalf of a Party, or measures related to
such information, including measures related to its collection.
Some Members have said they want to carve out from scope financial services as defined
in the GATS Annex on Financial Services as well as clarifying the article would not apply to financial
service suppliers as it is addressed in Article [X] (Financial Information).
Several have noted the need to determine the relationship of provisions with the legal
architecture of the JSI outcome and to existing WTO agreements.
Some Members have noted that each Member may have its own regulatory requirements
concerning the transfer of information by electronic means.
 
Textual Proposal
 
The textual proposal, after taking those concerns into consideration, says “no [party/member]
shall prohibit or restrict the cross-border transfer of information, including personal information, by
electronic means, if this activity is the conduct of the business of a covered person.”
 
In the same breadth, the proposal also says that “nothing in this Article shall prevent a
[Party/Member] from adopting or maintaining a measure inconsistent with paragraph 4 [that is
necessary] to achieve a legitimate public policy objective, provided that the measure:
 
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable
discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are
[necessary]/[required] to achieve the objective.”
 
It remains to be seen whether the above proposal could convince skeptical members to join the consensus on this most divisive issue in the JSI negotiations.

Arthur Stamoulis
Citizens Trade Campaign
(202) 494-8826




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