The General Agreement on Trade in Services (GATS) may be discussed once again at the World Trade Organization (WTO) level. This is partly due to the fact that information and communication technology (ICT) has changed the way services are delivered today in a cross border environment. This is also due to the reason that United States (U.S.) is planning to use the WTO platform for securing strong trade rules for the electronic commerce and cloud computing industry. Both of these industries are dominantly controlled by U.S. based companies and this would definitely help U.S and its technology companies.
This proposition of U.S. is troublesome and not acceptable to many nations of the world. Even India would not be happy with this arrangement especially at a time when India is reviving her electronic industry.
India has already justified its preferential market access (PMA) policy for domestic telecom equipments manufacturers. India has also formulated the merger and acquisitions (M&A) policy and guidelines 2014 for telecom sector of India. Similarly, electronic system design and manufacturing (ESDM) policy and regulations in India 2014 have also been enacted by India.
On the other hand, U.S. is planning to spearhead a robust work programme to frame trade rules to allow cross-border information flows, remove localization requirements for protecting personal data within national borders, and agree to a proper coverage of cloud computing as part of computer and related services. Regulations in some countries consider cloud computing as a telecommunications service and U.S. is anxious to get a reversal notification on this issue.
U.S. is already negotiating about these fields at Trans-Pacific Partnership (TPP) regional trade liberalization talks and Trade in Services Agreement (TISA) talks with selective countries in Geneva. However, nothing can give U.S. more leverage than a binding international treaty of WTO in this regard as almost all of the countries are Member of WTO. This also means that countries like China, India, Brazil, South Africa, Indonesia and other developing countries would be forced to align their respective laws in terms of proposed agreement.
In a restricted proposal circulated at the WTO’s Council for Trade in Services last Thursday, the U.S. has expressed its intentions to facilitate e-commerce, an area in which WTO members have remained unsuccessful in arriving at an agreement since 1998. The U.S. wants complete freedom for cross-border information flows. It says “governments should not prevent services suppliers of other countries or customers of those suppliers, from electronically transferring information internally or across borders, accessing publicly available information, or accessing their own information stored in other countries”.
More importantly, governments should not insist that “ICT service suppliers use local infrastructure, or establish a local presence, as a condition of supplying services”. Further, governments must not give priority or preferential treatment to national suppliers of ICT services in the use of local infrastructure, national spectrum or orbital resources. As far as India is concerned, all these issue are bound to be agitated against and rejected by her as they are in conflict with existing policies of India in this regard.
We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) believe that this proposal of U.S. must also to be tested on the front of civil liberties protection in cyberspace, privacy and data protection (PDF), conflict of laws in cyberspace and many more techno legal issues as well.