Via the IP Kat, there is a new article out on FTAs and IT/e-commerce issues — Bashar H. Malkawi, “E-Commerce in Light of International Trade Agreements: The WTO and the United States-Jordan Free Trade Agreement” International Journal of Law and Information Technology 2007 15(2):153-169.

From the abstract:

E-commerce offers economy-wide benefits. World Trade Organization (WTO) members recognized the benefits e-commerce offers and have developed a work program to facilitate the development of e-commerce. However, WTO efforts to facilitate e-commerce have stalled, leading to a slower than anticipated progress. As fundamental differences continue to stall progress in the WTO’s program on e-commerce, the United States concluded a free trade agreement with Jordan. This agreement was the first ever to incorporate explicit provisions on e-commerce. This article analyzes how existing trade agreements have dealt with e-commerce. The article gives an overview of the situation in WTO. The article then examines the e-commerce provisions in the United States-Jordan Free Trade Agreement (US-JO FTA) and how the parties have tackled the obstacles that stalled the WTO work on e-commerce. It concludes that the US-JO FTA approach regarding e-commerce did not move beyond what the WTO has already done. It is argued that although there are specific provisions dealing with e-commerce in the FTA, the parties left many loopholes to be filled.

The abstract is available here.

The Appendix to the report, The impact of Free Trade Agreements on Information Technology based business, is now out, as well as an updated version of the report (very minor corrections to the earlier version). The Appendix acts as a resource guide for materials related to the project, and its production was very ably assisted by Chloe Bermudez.

Both the Appendix and the updated report are available as part of the working paper series at the AHRC Research Centre for Studies in Intellectual Property and Technology law at the University of Edinburgh.

Working papers at the Centre.

Those following free trade agreements and TRIPS-plus agreements will be familiar with the tortuous approval process of DR-CAFTA. While all other signatory states have already approved the agreement, Costa Rica is still in the process of passing it into law due to heavy political opposition. The opposition has been such that President Oscar Arias signed an executive decision allowing a referendum to take place in October 2007 (Decreto del Poder Ejecutivo 33.717 MP).

The Costa Rican press has been reporting on the unconstitutionality action brought by the Defensoría de los Habitantes (a citizen ombudsman), and 17 legislators from several opposition parties. The argument is that the existing text in CAFTA violates several constitutional norms, particularly with regards to the opening of the telecommunications market. The Costa Rican Constitutional Court (Sala IV) has voted to uphold the constitutionality of the agreement 5 votes in favour and 2 against (2007-09469). The Court’s full opinion has not been published yet, but the vote has been made available by the press. I will write a brief outline of the analysis as soon as it is published, as this may prove to be an extremely important and historic decision.

This ruling will green-light the referendum. The YES camp is consistently ahead in the polls, with roughly 50% of the voting population in favour of its approval.