There are really two perspectives on just what is ‘e-commerce’ within the international legal community. For those of us that focus in on teaching and researching in the field of IT law, we tend to think about the following in terms of e-commerce:

  • Intellectual Property and its impact on the field, including domain name issues and peer-to-peer file sharing;
  • Internet governance;
  • Taxation and e-payments;
  • Contracting electronically;
  • Security and reliability issues, including spam and DDOS attacks;
  • Authentication issues and digital signatures;
  • Consumer protection issues;
  • Content regulation issues, including defamation and pornography;
  • Competition law aspects of e-commerce related businesses;
  • Human rights issues, in particular privacy;
  • Jurisdictional issues and the internet;
  • Telecoms issues, such as net neutrality and the interplay between telecoms policy and the law.

However, from the trade lawyer perspective, e-commerce tends to be look at in terms of:

  • Does e-commerce fit (if at all) within GATT, GATS, or both agreements?
  • How do trade policies involving e-commerce fit within the policy of technology neutrality in the WTO?
  • Is an internet transaction Mode 1 (travelling abroad) or Mode 2 (cross-border) within GATS?
  • How does ‘likeness’ fit in with providing e-commerce services? Does this conflict with policy of technology neutrality?
  • In particular with telecoms and ISP issues, what are the competition law aspects and how do they fit in with GATT and GATS?
  • Are digitizable products goods or services?
  • What is the relationship between e-commerce and MFN and national treatment obligations?

The first set, the IT lawyer perspective, doesn’t really make it the sections on ‘e-commerce’ in these agreements. It is true, however, that issues such as telecoms policy and IP do get addressed in FTAs. Taxation issues tend to be addressed in tax treaties and not in trade agreements. As to human rights issues, whether or not these can (or should) be addressed in the trade context is an area of some research.

This leaves issues such as:

  • Internet governance;
  • Contracting electronically;
  • Security and reliability issues, including spam and DDOS attacks;
  • Authentication issues and digital signatures;
  • Consumer protection issues;
  • Content regulation issues, including defamation and pornography;
  • Jurisdictional issues and the internet.

The above ‘e-commerce’ issues are generally not addressed (at least not directly) in these agreements. Though it falls outside of the scope of the core goal of this project, looking at the possibility of addressing these issues in FTAs is interesting. This kind of study would by necessity have to look at the institutional aspects of regulating in these areas — I’m thinking of the forum shift from WIPO to the WTO that happened in relation to IP.

Could we see issues such as the Proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters be brought up within the trade context?