The website bilaterals.org has posted the WTO E-Commerce consolidated negotiating text from December 2020. (This text is still officially restricted on the WTO website as far as I can see). I was intrigued by one of the formulations in the general exceptions provisions (see Annex I, section (6) on p. 85), which states:
For the purposes of this Agreement, Article XX of GATT 1994 and its interpretative note and Article XIV of the General Agreement on Trade in Services in Annex 1B to the WTO Agreement shall apply [to the extent applicable. To this end, the provisions above shall be incorporated into and made an integral part of this Agreement], mutatis mutandis.
[[Parties/Members ]further agree that, in view of the challenges brought by the global nature of the internet, this Agreement shall not prevent Members from adopting or maintaining any measures for the purposes of guaranteeing cybersecurity, safeguarding cyberspace sovereignty, protecting the lawful rights and interests of its citizens, juridical persons and other organizations and achieving other legitimate public policy objectives, provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade, and are no more than necessary to achieve the objectives.]]
That last clause is a little confusing. Is it supposed to read "no more restrictive than necessary"? Does "no more than necessary" stand on its own? What exactly would that mean?
Regardless of that issue, I'm going to use this as an opportunity to raise something that does not seem to be on the radar of many trade insiders, and when I do mention it every now and then, most people look at me like I'm crazy. In my view, necessity tests don't work very well as a way to connect measures to their policy goals, and we should consider drafting exceptions provisions with some alternative language. "Related to" is a good option, and perhaps so is something like "for the purposes of" all by itself. In theory, necessity tests can be applied in such a way that they are really no different than "related to" tests, but there is no guarantee they will be applied that way, and I worry that in practice they will be applied too strictly and make it difficult to adopt non-discriminatory regulations.
Revising existing agreements is difficult, and I don't have great hopes for making changes to existing WTO agreement texts. But with e-commerce, we are starting fresh, and we have an opportunity to think about everything from scratch. That last clause in the quoted text should be looked at closely by the drafters, with the following question in mind: Is the necessary clause really necessary here?
