This chapter conducts an analysis of the GATS disciplines and their applicability to digital services trade. The reader is thereby provided with an overview of the relevant GATS obligations and how they apply to the supply of digital services. The distinction between the GATS’ general obligations and its obligations subject to specific commitments is explained and the implications for digital services trade elaborated upon. The chapter also sets out how the digital supply of services that can also be supplied offline impacts the likeness analysis in various GATS obligations. The most relevant obligations for digital services trade are the most-favoured nation treatment obligation, the market access obligation and the national treatment obligation. The chapter discusses the potential overlap between the latter two obligations and how to interpret WTO Members’ Services Schedules to understand their commitments. The chapter additionally addresses the applicability of the Annex on Telecommunications, the Reference Paper on Basic Telecommunications and the Understanding on Commitments in Financial Services to digital services trade. Finally, the chapter discusses the justification grounds in the GATS and how they relate to digital services.

This book set out to answer the research question: ‘Can the specific barriers to digital services trade be addressed within the existing international legal framework applicable to trade in services?’. The final conclusion that can be drawn from this research is that the specific barriers that were identified can be addressed under Members’ existing GATS obligations. It can therefore suffice for Members to clarify their understanding of the scope of the GATS in relation to digital services and the interpretation of their specific commitments without needing to negotiate new substantive provisions in order to address these barriers.

This chapter elaborates on the relationship between digital services and the GATS. First, the characteristics of the GATS are explained, including the recognised four modes to supply services, the specific commitments WTO Members have included in their Services Schedules and how this impacts the Members’ obligations under this agreement. Digital services are not explicitly referred to in the GATS, but through an analysis of the scope of the GATS, this chapter explains why measures that affect digital services trade are covered by the GATS. Moreover, electronic delivery of services fits within the four modes of supply as recognised within the GATS. The chapter also elaborates on the principle of technological neutrality and how it applies to the GATS. Finally, the chapter discusses the work that has been undertaken by WTO Members in the context of the Work Programme on Electronic Commerce, which was established in 1998. The lack of substantive progress in the context of this Work Programme illustrates the divergent positions of WTO Members on digital issues.

The emergence of the Internet and the phenomenon of the digitisation of traditional goods and services has had a major impact on global trade. In the same way as digital goods and services have seeped into every aspect of our daily lives, digitisation has permeated international trade, heavily impacting cross-border trade in goods and services. Goods need no longer be bought in brick-and-mortar stores but can now be ordered online with minimal effort. Goods produced on the other side of the world are only one click away and consumers are spoiled with endless choice in virtual marketplaces. The rise of electronic commerce has caused the creation of so-called multi-sided platforms, whose business model is built on enabling transactions between two or more distinct types of customers (e.g. sellers and buyers). Some of these platforms have gained immense market shares and are starting to dominate the economic landscape in various sectors.

This chapter analyses the consistency of the barriers to services trade that were identified in Chapter 3 with the GATS obligations as elaborated upon in Chapter 6. First, the chapter addresses restrictions to cross-border data flows, using two case studies: Russia’s amended Law on Personal Data and the EU’s General Data Protection Regulation. Second, the barrier of web filtering and content control is assessed under the applicable GATS obligations, using the case study of China’s Great Firewall. Third, the lack of access to infrastructure as an obstacle to digital services trade is considered using the case study of the United States’ Restoring Internet Freedom Order. Finally, a briefer analysis of the GATS consistency is provided for bans on cross-border supply through electronic means, digital taxes and restrictions on intellectual property rights. For each of these barriers, the services at issue are classified, the different GATS obligations are applied and the potential justification grounds are considered.

This chapter elaborates on the impact of digitisation on international trade. It explains both the benefits of digitisation and the issues that the digital economy faces. Digitisation has allowed for unprecedented supply of goods and services across borders and has removed many practical barriers to the cross-border supply of services. However, the positive impact of digitisation on the global economy has not reached all countries to the same extent. The ‘digital divide’ entails that several developing countries at the moment do not sufficiently benefit from the changes brought about by digitisation. The chapter further elaborates on the impact of digitisation for services trade specifically. In order to set the scene for the rest of the book, the concept of digital services is contextualized and explained, providing the reader with a clear understanding of the subject of the legal analysis that will be conducted in the rest of the book.