The WTO’s negotiating function can be revitalized without drifting off into the territory occupied by the JSI. Genuine progress can be made through streamlining and rejuvenating the Work Programme on e-Commerce, providing space for ample debate on issues that JSI members consider most relevant, such as data flows or source code disclosure.

The developing countries can negotiate exceptions to obligations crafted in the negotiating text. For example, the e-commerce chapter of RCEP incorporates the exceptions of ‘legitimate public policy objectives’ and ‘essential security interests’ to justify domestic mandates restricting cross-border data flows. Exceptions serve as an important balancing tool for preserving decision-making space without impeding the passage of the rule itself.

The outcome need not be an ‘all or nothing' arrangement which compels consensus on all issues of digital trade.[xxxiii] Instead, the modular approach adopted in the DEPA – the Digital Economy Partnership Agreement between Singapore, Chile, and New Zealand – can be adopted, whereby countries can pick and choose ‘modules’ with which they want to comply. Through different combinations of modules, a global legal architecture can amass incrementally while developing countries think through and implement domestic regulations that work for the interests of their citizens.

The principles and governance architecture of the WTO plays a talismanic role in global governance. Undoubtedly, the forum has its imperfections and has often been captured by the hegemonic tendencies of the powerful. Yet it remains the closest the world trading system can come to guaranteeing a level-playing field. As nation states wade the unchartered waters of the digital world, it is imperative that these institutional mechanisms be refined and updated. Astute consensus building in lieu of obstinate abstention is the need of the hour.

[i] - World Trade Organization," Further progress cited in e-commerce negotiations, “Press Release, 22 July 2021, https://www.wto.org/english/news_e/news21_e/jsec_22jul21_e.htm

[ii] - Joint Statement on E-Commerce,"E-commerce talks: two "foundational" articles cleaned; development issues discussed" World Trade Organization,13th September 2021, https://www.wto.org/english/news_e/news21_e/jsec_12sep21_e.htm (The JSI reported progress specifically on open government data and online consumer protection, along with discussions on several developmental issues of digital trade)

[iii] - Susan Ariel Aaronson, " The digital trade imbalance and its implications for internet governance," Centre for International Governance Innovation No.25, (2016)

[iv] - Mark Wu “Digital Trade-Related Provisions in Regional Trade Agreements: Existing Models and Lessons for the Multilateral Trade System.” Overview Paper (2017). http://e15initiative.org/publications/digital-trade-related-provisions-in-regional-trade-agreements-existing-models-and-lessons-for-the-multilateral-trade-system/

[v] - World Trade Organization," The First WTO Ministerial Conference, https://www.wto.org/english/thewto_e/minist_e/min96_e/min96_e.htm vi World Trade Organization, “Electronic commerce,” https://www.wto.org/english/tratop_e/ecom_e/ecom_e.htm

[vii] - Joint Statement on Electronic Commerce, WT.MIN (17)/60, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN17/60.pdf&Open=True

[viii] - Joint Statement on Electronic Commerce, WT/L/1056. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/L/1056.pdf&Open=True

[ix] - Henry Gao, "Across the great wall: Ecommerce Joint Statement Initiative Negotiation and China," (June 19, 2020). Available at SSRN: https://ssrn.com/abstract=3695382

[x] - United Nations Conference on Trade and Development, " What is at stake for developing countries in trade negotiations on E-commerce, "UNCTAD/DITC/TNCD/2020/5, pp.9, https://unctad.org/system/files/official-document/ditctncd2020d5_en.pdf

[xi] - WTO Joint Statement on Electronic Commerce: Communication from Indonesia (INF/ECOM/47,November 22,2019) xii Yulya Aryani, Wina Andari and Suhindarto, Impact of Information Technology and E-Commerce on Indonesia's trade to ASEAN countries (ADBI Institute Working Paper Series No. 1254, April 2021),pp.13, https://www.adb.org/sites/default/files/publication/697176/adbi-wp1254.pdf

[xiii] - United Nations Conference on Trade and Development, " What is at stake for developing countries in trade negotiations on E-commerce, "--.9 xiv Joint Statement Initiative on E-Commerce: Co-Conveners Update,https://www.wto.org/english/news_e/news20_e/ecom_14dec20_e.pdf

[xv] - Kirtika Suneja, "India and South Africa revive multilateral talks on ecommerce," Economic Times, Dec10,2020, https://economictimes.indiatimes.com/news/economy/policy/india-and-south-africa-revive-multilateral-talks-on-ecomm/articleshow/79650347.cms?from=mdr

[xvi] - The Legal Status of Joint Statement Initiatives and their negotiated outcomes,18 February 2021, WT/GC/W/819, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/GC/W819.pdf&Open=True

[xvii] - Nicolas Lamp," A historical perspective on India's and South Africa's threat to block the implementation of the Joint Statement Initiatives in the WTO, and a potential way forward, “International Economic Law and Policy Blog, February 26,2021, https://ielp.worldtradelaw.net/2021/02/a-historical-perspective-on-indias-and-south-africas-threat-to-block-the-implementation-of-the-joint.html

[xviii] - https://www.wto.org/english/news_e/news20_e/jsec_18dec20_e.pdf

[xix] - Arindrajit Basu, Elonnai Hickok and Aditya Chawla, “The Localisation Gambit: Unpacking policy moves for the sovereign control of data in India” (Centre for Internet&Society,19 March 2019) https://cis-india.org/internet-governance/blog/the-localisation-gambit-unpacking-policy-moves-for-the-sovereign-control-of-data-in-india

[xx] - Shamel Azmeh, Christopher Foster, and Jaime Echavarri, " The international trade regime and the quest for free digital trade" International Studies Review 11 No. 3 (2020). 671.

[xxi] - United Nations Conference on Trade and Development, " What is at stake for developing countries in trade negotiations on E-commerce, "UNCTAD/DITC/TNCD/2020/5, pp.40, https://unctad.org/system/files/official-document/ditctncd2020d5_en.pdf

[xxii] - "US warns over moves to discontinue moratorium on e-commerce duties," 5 March 2021, Third World Network, https://twn.my/title2/wto.info/2021/ti210307.htm

[xxiii] - WTO, General Council, Work Programme on Electronic Commerce: The E-Commerce Moratorium: Scope and Impact, Communication from India and South Africa, WTO Doc WT/GC/W/798, online: WTO. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/GC/W798.pdf&Open=True xxiv UNCTAD, What is at stake for developing countries? xxv "India 'important digital power', won't compromise on data sovereignty: Ravi Shankar Prasad," Financial Express, July 07, 2020, https://www.financialexpress.com/industry/technology/india-important-digital-power-wont-compromise-on-data-sovereignty-ravi-shankar-prasad/2016438/

[xxvi] - PTI," Mukesh Ambani urges PM to take steps against data colonisation," Economic Times, Jan 18,2019, https://economictimes.indiatimes.com/tech/ites/mukesh-ambani-urges-pm-to-take-steps-against-data-colonisation/articleshow/67585615.cms?from=mdr

[xxvii] - https://www.datacenterdynamics.com/en/news/indonesias-data-center-industry-protests-data-localization-reform/

[xxviii] - “Osaka Declaration on Digital Economy” (declaration, G20 Osaka summit, Osaka, 28 June 2019). http://www.g20.utoronto.ca/2019/osaka_declaration_on_digital_economy_e.pdf

[xxix] - Alexander Fanta," Tech industry pushes Europe for WTO data flows deal," Netzpolitik.org, June 30, 2021, https://netzpolitik.org/2021/digital-trade-tech-industry-pushes-europe-for-wto-data-flows-deal/

[xxx] - Fanta,” Tech industry pushes Europe for WTO data flows deal” xxxi Aditya Chunduru, "Quad countries to form Working Group on Critical and Emerging Technologies," Medianama, March 13,2021, https://www.medianama.com/2021/03/223-quad-critical-emerging-technology/

[xxxii] - Amrita Narlikar, " A trade war on the poor," Foreign Affairs, March 5,2018, https://www.foreignaffairs.com/articles/2018-03-05/trade-war-poor

[xxxiii] - James Bacchus, The Digital Decide: How to agree on WTO rules for digital trade, (Centre for International Governance Innovation,2021), https://www.cigionline.org/static/documents/TheDigitalDecide-Bacchus.pdf