The Dominican Today reports that during his recent trip to Brazil, President Leonel Fernández expressed the DR’s interest in forming a trade alliance between the DR and Brazil, taking advantage of the DR-CAFTA1. It is reported that the DR is keen to attract investment in order to develop its ethanol industry, and that President Fernández has indicated that the DR-CAFTA makes the DR an ideal platform for export to the US market2. While in Brazil, President Fernández managed to conclude agreements with investors for, among other things, biofuel production3.
1 “Brazil-Dominican pact would bank on US-Central America Free Trade” (June 20, 2007), Dominican Today: http://www.dominicantoday.com/app/article.aspx?id=24367
2 “Official visit seeks Dominican-Brazilian trade, aviation and fuel pacts” (June 15, 2007), Dominican Today: http://www.dominicantoday.com/app/article.aspx?id=24317
3 “President back from a successful Brazil trip” (June 24, 2007), Dominican Today: http://www.dominicantoday.com/app/article.aspx?id=24412
It is reported in the Associated Press that Google has asked the US Trade Representative’s Office to consider state censorship of the Internet as a form of non-tariff restriction on global trade when negotiating free trade agreements1. The suggestion appears to have been based on a paper in which Timothy Wu argued that downloading a web page hosted in another country involves the importation of a service2. The acceptance of Google’s argument could herald a significant increase in the impact of FTAs on IT-based businesses. Trade negotiators may find themselves negotiating commitments to reduce a broad range of state operated restrictions on the internet – these issues traditionally falling within the purview of human rights lawyers.
1 Rugaber, C.S,. “Google seeks help” (June 26, 2007), Associated Press: http://www.theglobeandmail.com/servlet/story/RTGAM.20070622.wgtcensor0622/BNStory/Technology 2 Ibid.; see also Wu, T., The World Trade Law of Internet Filtering (2005), available at SSRN: http://ssrn.com/abstract=882459
This is a first impression of the E-commerce chapters of KORUS and DR-CAFTA.
KORUS has more in-depth treatment on e-commerce than was in the DR-CAFTA agrement, including specific sections on Electronic Signatures, Online Consumer Protection, a set of principles on internet use and access, and cross border information flows. A few key points are interesting:
Electronic Signatures
KORUS Article 15.4 specifically addresses Electronic Authentication and Electronic Signatures. It contains an outright prohibition from adopting or keeping legislation that:
15.4.1(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction;
15.4.1(b) prevent parties from having the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with any legal requirements with respect to authentication; or
15.4.1(c) deny a signature legal validity solely on the basis that the signature is in electronic form.
My first impression is that this may be related to problems, often found in civil law societies, with requirements for certain formalities in contracts and the conflict with performing these acts electronically.
Online Consumer Protection KORUS 15.5
This is a very general statement about the importance of consumer protection in the online environment, and states that their respective consumer protection agencies ” shall endeavor to cooperate with each other” on enforcement issues. My guess is that phishing and spam are the key drivers for the inclusion of this language.
DR-CAFTA 14.5 also has a cooperation section, though it is broader, and includes cooperation on IP and electronic government (14.5(b).
Principles on access to and use of the internet for Electronic Commerce KORUS 15.7
This is pretty interesting, so I include it in full:
To support the development and growth of electronic commerce to facilitate trade, each Party recognizes that consumers in its territory should be able to:
(a) access and use services and digital products of their choice, unless prohibited by the Party’s domestic law;
(b) run applications and services of their choice, subject to the needs
of law enforcement;
(c) connect their choice of devices to the Internet, provided such devices do not harm the network and are not prohibited by domestic law; and
(d) have the benefit of competition among network providers, application and service providers, and content providers
All of this is with the soft and probably non-binding “should be able to” standard.
Cross border information flows
15.8 of KORUS includes this language:
In recognition of the importance of the free flow of information to facilitating trade and acknowledging the importance of protecting personal information, the Parties shall endeavor to refrain from imposing or maintaining unnecessary barriers to information flows across borders.
DR-CAFTA has a similar provision in 14.5(c):
(c) working to maintain cross-border flows of information as an essential element in fostering a vibrant environment for electronic commerce;
My first impression is that the KORUS language seems to address more closely cross border privacy issues, much like the EU-US sharing of data situation. It also contains a stronger (though not that strong) standard - “shall endeavor to refrain from imposing”.
I wonder if e-commerce will play a greater role in future agreements by the US — more to follow on this analysis. Comments are warmly welcomed.
