As the global leader in digital trade, the United States has a big stake in ensuring that international rules facilitating its continued expansion are put in place.

The Obama Administration’s bold agenda to establish these rules across Europe and the Asia-Pacific did not yield lasting success, with the failure of the Transatlantic Trade and Investment Partnership (TTIP) negotiations and the Trump Administration’s withdrawal from the Trans-Pacific Partnership (TPP). Nonetheless, the key elements of US digital trade policy enjoy bipartisan policy support, providing a promising basis for the next Democratic administration to re-engage with Europe, our biggest digital trading partner.

Part 1 of this issue brief explains why international rules are needed to protect and facilitate digital trade. Part 2 describes the turbulent past decade in transatlantic trade relations and the growing importance of US digital trade with Europe. Part 3 explains why the US government and the European Union (EU), during TTIP negotiations, were unable to agree on a digital trade chapter, including a key provision guaranteeing the free flow of data. Finally, Part 4 suggests how two parallel sets of trade negotiations beginning early this year — between the EU and the United Kingdom (UK) and between the United States and the UK — may help a future US Administration end the transatlantic stand-off over digital trade.

To view the full report at Progressive Policy Institute, please click here

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“The numerous blockchain networks and DLT platforms will help realize the potential of digital transformation to drive greater economic inclusion. The International Chamber of Commerce (ICC) together with its partners, as neutral conveners of all trade stakeholders across the world, aims at connecting and coordinating these disparate groups in order to accelerate efforts to digitalize trade” said David Bischof, Deputy Director, Finance for Development, International Chamber of Commerce.

“Having a constant need to know all developments and involved parties, this report is an indispensable tool for the entire ecosystem to keep track and align actions.” Bischof added.

Reality Check

We’re living through exciting times. While international trade in goods has seen little innovation since the invention of the container in the 50s, the tedious, labour- and paper-intensive processes required to ship around the world could well become a story of the past thanks to the advent of new technologies, particularly distributed ledger technology (DLT) – colloquially termed “blockchain”. 

Rarely has a technology spurred so much hype and hope amongst the trade and trade finance community. Not without reason: The possibilities that blockchain unlocks to track transactions and exchange assets in real-time, in a trusted and highly secure environment using peer-to-peer validation and networks makes it an appealing tool to remove many of the inefficiencies that hinder one of the oldest forms of traditional finance today.

Over the past few years a myriad of projects have been launched to enhance processes related to trade finance, to digitalize trade documentation, and to reduce inefficiencies in transportation and logistics. Some take the form of multi-player consortia and networks, others are building a fabric layer to interconnect these different projects, and others are built to digitize particular aspects of the trade and supply chain.

These international trade actors are changing fast, but how many of these initiatives have moved beyond a proof-of-concept? What are the challenges that these new actors now face as we go past the trough of disillusionment and exploratory phase of DLT in trade?

Building on the WTO publication “Can Blockchain Revolutionize International Trade?” authored by Emmanuelle Ganne and TFG’s white paper “Blockchain and Trade Finance”, this study provides an overview of the main projects underway in trade, with a focus on trade finance, shipping, and the digitalization of trade documents, and assesses their stages of maturity. Based on a survey of more than 200 actors in the field, it analyses the key challenges that companies involved in blockchain projects are facing and discusses actions that may need to be taken to allow the technology to truly transform international trade. After years of hype around blockchain, the time has come for a reality check.

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Today, that growth and innovation is threatened as countries are considering terminating this agreement and imposing – for the first time ever – customs duties on software, music, film, and other digital products and services transmitted electronically over computer networks. Such duties jeopardize US jobs and exports. US policymakers should encourage countries to vote in favor of an extension of the Moratorium and should resist efforts to negotiate these issues at the World Customs Organization (WCO), which lacks the mandate to set such duties.

Why Does the WTO Moratorium Matter?

Customs duties on electronic transmissions would impact a wide range of US digital exports – potentially including subscription or streaming services for music, film, and publications; cloud and other remote software services; app updates and software security patches; data used in manufacturing plants; and a broad catch-all category of “other digital products.”

Some countries have even begun, or are considering, imposing customs duties and requirements on cross-border electronic transmissions. For example, in 2018, Indonesia issued Regulation No.17/PMK.010/2018 (Regulation 17), which amends the Indonesian Harmonized Tariff Schedule to add Chapter 99: “[s]oftware and other digital products transmitted electronically.” The measure has never been fully implemented, but if the Moratorium is terminated this could very well change.

If implemented around the world, measures imposing customs duties on electronic transmissions would have an immediate impact on the global economy – harming not only American digital exporters and workers, but also local industries, workers, and consumers in the implementing countries.

The United States Stands to Lose Jobs and Exports Across Digital Industries if Countries Impose these Duties

Software contributes $1 trillion to US Gross Domestic Product (GDP) and employs over 10 million Americans in jobs that pay more than two times the national average wage. Ending the Moratorium and imposing customs duties on electronic transmissions of software would jeopardize this economic prosperity. Additional impacts exist for American film, music, and other digital exports too.

Regulation 17 purports to cover a wide array of categories, classified in Indonesia’s tariff schedule between subheadings 9901.10.00 to subheading 9901.90.00, including “multimedia (audio, video or audiovisual)”; operating system software; application software; “support or driver data, including design for machinery system”; and a broad catch-all category covering “other software and digital products.”

Countries Imposing Customs Duties Face the Greatest Economic Risks

Countries imposing these duties have the most to lose: Such duties put at risk those countries’ global competitiveness, exports, exports, jobs, and consumer welfare. For example, a country that levies such duties would increase its own industries’ costs of accessing critical technologies and data, including productivity-enhancing software solutions; scientific, research, and other publications; and manufacturing data, blueprints, and other operational information.

Local industries need cross-border access to best-in-class software and data. Faced with higher software costs, local industries will become less competitive vis-à-vis their foreign competitors – threatening both domestic and export market sales. Furthermore, as customs duties would impose an unnecessary burden on local industries, they would also undermine those countries’ attractiveness as a destination for investment and R&D.

Estimated trade impacts are striking. According to a study recently published by the European Centre for International Political Economy (ECIPE), gross domestic product (GDP) losses would exceed the value of customs duties collected by 160 times for Indonesia, 49 times for India, and over 25 times for South Africa, when the risk of retaliatory or corresponding duties imposed by other countries is taken in to account.

Countries Imposing Customs Duties Also Face Legal Risks

Countries imposing such duties on electronic transmissions would also create unnecessary legal risk for themselves. Some countries have discussed the imposition of duties on digital services provided via the cloud or remote access or the imposition of such duties exclusively on foreign enterprises. These scenarios raise serious questions regarding both differential treatment and the scope of WTO Member authority to impose tariffs on such services.

The nature of electronic transmissions, which often consist of data packets transiting multiple servers in multiple jurisdictions, makes country of origin determinations difficult – if not impossible. Additionally, for those seeking to use the WCO to negotiate these tariffs or to address related legal questions, it is important to recall that the WCO’s mandate is limited to enhancing the effectiveness and efficiency of customs administrations – not tariff negotiations or determinations of the WTO consistency of such tariffs.

Is There Another Way?

Discussions are underway among countries at the Organization for Economic Cooperation and Development (OECD) to reach a multilateral agreement to address the challenges to the international tax system posed by an increasingly digitized global economy. Any such internal taxes would need to be applied on a neutral and nondiscriminatory basis, consistent with WTO and other international obligations.

Conclusion

We respectfully ask the US government to encourage countries to vote in favor of an extension of the Moratorium and to resist efforts to improperly negotiate these issues at the WCO.

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Why Does the WTO Moratorium Matter?

The Moratorium is an agreement not to impose customs duties on cross-border electronic transmissions. Some countries have begun, or are considering, imposing customs duties and requirements on those transmissions, including enterprise software solutions. While imposing such duties may sound appealing, it is ultimately a self-defeating step that will reduce those countries’ competitiveness, undermine their exports, and hurt their consumers and workers. A country that levies such duties is increasing its own industries’ costs of accessing a wide array of technologies and data sources that are critical to growth and innovation, business operations, and the transfer of technology. This includes:

• productivity-enhancing software solutions;
• scientific, research, and other publications; and
• manufacturing data, blueprints, and other operational information.

Self-imposed restrictions on enterprise software solutions will hinder economic development. These and other transmissions are necessary for industries to compete in the marketplace, invest in the future, and hire workers locally.

The Economic Damage to Countries Imposing Customs Duties on Software & Other Electronic Transmissions Could be Severe

Countries should be wary of the claim that they would benefit by imposing customs duties on software and other electronic transmissions. According to a study recently published by the European Centre for International Political Economy (ECIPE), gross domestic product (GDP) losses would dwarf the value of customs duties collected by 160 times for Indonesia, 49 times for India, and over 25 times for South Africa, when the risk of retaliatory or corresponding duties imposed by other countries is taken in to account.1 The impacts on these countries’ digital exports of film, music, publications, software, and other types of electronic transmissions could be severe. Across even just a handful of developing countries, ECIPE estimates the annual GDP losses at US$10.6 billion. 

Imposing Customs Duties on Software & Other Electronic Transmissions Will Hurt Local Industries and Economies

In today’s global marketplace, companies seek to gain an edge by integrating software and other emerging technologies at every stage of the production and value chain. Data-enabled software innovations, which are most often electronically accessed via cloud computing, are connecting suppliers, manufacturers, and service providers around the world, while accelerating efficiencies relating to product design, engineering, production, logistics, marketing, and servicing. Software is the tool that drives these efficiencies. Local industries need cross-border access to best-in-class software and data. By imposing customs requirements on local industries, countries will hurt their own future economic growth and competitiveness. Faced with higher software costs, local industries will become less competitive vis-à-vis their foreign competitors – threatening both domestic and export market sales. Furthermore, as customs duties would impose an unnecessary burden on industries operating in those countries imposing them, they would also undermine those countries’ attractiveness as a destination for investment and R&D.

Countries that Impose Customs Duties on Software & Other Electronic Transmissions Face Significant Legal Exposure

At a time of ongoing WTO digital trade negotiations and uncertainty in the global trading system, countries should be careful not to create unnecessary legal exposure for themselves by imposing customs duties or other requirements on electronic transmissions. Some have discussed the imposition of duties on digital services provided via the cloud or remote access or the imposition of such duties exclusively on foreign enterprises. These scenarios raise serious questions regarding both differential treatment and the scope of Member authority to impose tariffs on services. The nature of electronic transmissions, which often consist of data packets transiting multiple servers in multiple jurisdictions, makes country of origin determinations difficult – if not impossible. Finally, for those seeking to use the World Customs Organization (WCO) to negotiate these tariffs or to address related legal questions, it is important to recall that the WCO’s mandate is limited to enhancing the effectiveness and efficiency of Customs administrations – not tariff negotiations or determinations of the WTO consistency of such tariffs.

Conclusion

For the foregoing reasons, WTO Members should vote in favor of an extension of the Moratorium.

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Background

• Since 1998, the WTO Members have applied a moratorium against tariffs on international electronic transmissions (commonly referred to as the WTO ‘E-Commerce’ Moratorium). However, some WTO Members have recently debated whether the moratorium remains in their economic interest, given the potential revenues that might be generated by imposing tariffs on electronic transmissions. The study examines the impact on India, Indonesia, South Africa and China (and the general case for developing countries) and concludes that imposing such tariffs would be fiscally counter-productive.
• Putting aside any legal questions, a country that opted out of the moratorium may apply tariffs affecting a wide range of cross-border business activities. Our research shows that if countries ceased to uphold the moratorium and levied import duties on digital goods and services, they would suffer negative economic consequences in the form of higher prices and reduced consumption, which would in turn slow GDP growth and shrink tax revenues. Yet our research indicates that the payoff in tariff revenues would ultimately be minimal relative to the scale of economic damage that would result from import duties on electronic transmissions.

GDP and tax losses based on global imposition of tariffs on electronic transmissions (Scenario 2) on four economies. (in millions of US$)Impact on GDP and the economy  

• Each of the four countries examined in our study would lose considerably more in gross domestic product (GDP) than they would gain in tariffs. Assuming a likely scenario in which tariffs imposed by one country gave way to widespread reciprocal tariffs (Scenario 2), India would lose 49 times more in GDP than it would generate in duty revenues. The figures are even more skewed for Indonesia, which would give up 160 times as much GDP as it would collect in tariffs, while South Africa would lose over 25 times more and China, seven times more.

Impact on tax revenues

• Likewise, if the goal is to fill tax coffers, imposing tariffs is a wrong-headed strategy. Duties would take a toll on domestic output that would depress tax collection. The net result for tax authorities is strongly negative. Again assuming a situation of reciprocal tariffs (Scenario 2), the loss of tax revenues is estimated to be 51 times larger than the tariff revenues for India, 23 times for Indonesia, 12 times for South Africa and three times for China. In short, a tariff on electronic transmissions would prove to be a highly inefficient form of tax collection.

Conclusion from the results

• In assessing existing literature on this issue, our study examined the potential tariff revenue losses projected in 2017 and 2019 UNCTAD reports that made a case for ending the moratorium. However, UNCTAD research did not discuss the economic and domestic tax losses that are likely to ensue if duties are implemented – and which we detail further in our own study. UNCTAD reports also did not take into account the significant enforcement and compliance costs involved in implementing electronic tariffs.
• In addition, UNCTADs’ research was based on certain assumptions that we believe merit serious scepticism – including that in the future, virtually all physical media or paper-based products would be digitised and therefore exempt from duties under the moratorium. Finally, those reports substantially overstated the potential of ‘lost’ tariffs due to digitalisation by over-estimating the value of digital trade – despite contrary evidence that the price of digitally-delivered items has tended to decline over time.
• Both UNCTAD reports have sought to argue that the adoption of 3D printing or additive manufacturing would make it harder for developing countries to capture taxes on manufactured goods. We believe the premise of this argument is questionable. It remains the case that, even if the files for 3D manufacturing (e.g. schematics and blueprints) can only be taxed once, the source materials used to manufacture products (the additives, or the thermoplastic ‘ink’ of a 3D printer) will remain subject to tariffs and sales tax. The more items are manufactured, the more states would stand to collect in tariffs and sales tax on 3D ‘ink.’ In short, we see no reason that the advent of 3D printing would undermine the economic logic of maintaining the moratorium.
• Finally, we would draw attention to one of the less-heralded benefits of digital trade, and one that is a boon to tax collection e-commerce forces more transactions into a transparent, trackable and therefore taxable realm. For many developing countries, where tax evasion is a constant challenge, a shift towards digital transactions is likely to help boost domestic tax collection. Far from undermining government sources of revenue, the growth of e-commerce stands to enhance a nation’s tax base, pushing grey market transactions into a taxable space.

Introduction

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These innovations create challenges for the beleaguered multilateral trading system whose rules were crafted long before the World Wide Web existed.  As noted in this Bretton Woods Committee blogpost, evolution in how economic actors transact business requires policymakers similarly to adjust the form and content of their international trade agreements in order to remain relevant.  Policymakers are aware of the challenge. The outlines of the debate are only just now starting to emerge.

WTO Secretary General Azevedo recently noted in this speech that a significant proportion of regional trade agreements (approximately 0%) already include e-commerce components designed to extend the multilateral trading paradigm into the sector.  He expects the proportion to increase, no doubt due to the various workstreams underway inside the WTO under the “Work Programme on Electronic Commerce” launched this year among 76 nations globally. But the familiar triad of trade disciplines (market access, customs facilitation, rules/enforcement) illustrates the magnitude of the challenge at hand.

• Market Access: Much digital commerce already occurs in a duty-free zone in the sense that intellectual property (e.g., software downloads) is not subject to a tariff structure which requires negotiation.  Moreover, the free flow of data and software globally often includes a parallel cross-border sharing of personal and professional data which itself is also not subject to formal trade rules. 
• Customs Facilitation: For those transactions that still generate parallel flows of concrete goods, trade standards seeking to facilitate cross-border commerce increasingly must recognize as valid e-signatures, electronic bills of lading and, of course, blockchain-based trade documents with built-in (but not always auditable) authentication.
• Rules/Enforcement: Transparency regarding the rules applicable to electronic transactions and trade quickly generate complicated questions about what kind of rules should be included.  Should data protection laws at the national or sub-national level be considered a non-tariff barrier (NTBs) subject to trade remedies?  The decades-long shift towards services trade raises real questions and tensions regarding where the appropriate boundary should exist between protectionist national standards that create impressible trade barriers and legitimate national efforts to articulate standards as noted in this Atlantic Council blogpost.  Experience in this area suggests strongly that being overly aggressive regarding NTBs can backfire, increasing trade tensions and raising real questions regarding which entities are appropriately authorized to articulate and enforce such rules.

Beyond these technical areas, real questions also arise globally once the digital divide is taking into consideration.  As this think tank study indicates, developing nations increasingly question whether data should flow freely without charges or fees across borders in general even before data privacy and data protection issues are discussed.  A broad range of developed and developing countries additionally are experimenting with a range of data localization requirements such as local content, local presence and local corporate governance.  Some nations (most famously, China) also require some technology transfer as a condition of market entry.

Formally, the Trade in Services Agreement provides the main mechanism for negotiating new trade standards regarding e-commerce that go far beyond customs facilitation and authentication. The WTO talks include discussions regarding network access, online consumer protection, net neutrality, and source code in addition to localization, data privacy and customs facilitation.

The United States Example

The United States has negotiated ten bilateral free trade agreements since the turn of the 21^st century with e-commerce chapters.  The United States Trade Representative has held two consistent positions across multiple administrations regarding cross-border digital trade.  First, such trade must occur without additional trade policy frictions in the form of customs duties.   Second, the non-discrimination principle must extend across the full scope of digital products.  These two positions appear consistently in all ten free trade agreements. 

Four of these agreements (Australia, Korea, Chile, Columbia) additionally include commitments concerning digital authentication of trade documents.  Five of these agreements (Australia, Columbia, Korea, Peru) also include general language – but no enforceable obligations – regarding the importance of transparent and fair consumer protection standards. These provisions operate in addition to now-standard language in free trade agreements regarding protection of intellectual property rights.

Only one agreement (Korea) expressly addresses data localization issues.  Perhaps unsurprisingly, the agreement establishes a principle in favor of the free flow of data across borders.  It specifically pledges that both nations will “endeavor to refrain from imposing of maintaining unnecessary barriers to electronic information flows across borders.”  Should it come to litigation, surely the modifier (“unnecessary”) will be the focus of the dispute.

This is not an academic hypothetical, especially at a moment in history when the U.S. government actively seeks to exercise the full scope of trade remedies available.  The scope of active trade remedy and enforcement activity goes far beyond the headline-grabbing tariff actions in old economy sectors like steel.  In March 2019, the USTR initiated trade consultation proceedings under the US-Korea Free Trade Agreement regarding a non-tariff issue that until recently would have been considered solely the province of national government immune from trade remedies:  competition/antitrust law. 

What Comes Next

U.S. policymakers are not alone in taking proactive action to extend traditional multilateral trading standards into non-traditional areas.  Consider this 2016 European Commission document, in which the EU made clear that it also seeks to promote the free flow of data across borders, but only subject to standards (currently under negotiation within the TISA framework) that would incorporate European rules regarding data protection and data privacy.  More importantly, the EU does not reject all localization requirements; it merely seeks to ensure that “market entrants do not face unfair licensing conditions when they enter a market.” 

The WTO also seeks to increase the cross-border flow of data, but from a different perspective.  Deputy Secretary General Alan Wolff indicated in a speech on April 11 that the WTO seeks to increase substantially the amount of data it collects and then shares to its membership regarding national-level regulatory standards and non-tariff barriers for the purpose of increasing transparency….and enforcement activity by members.  

Conclusion

The data revolution is only just beginning.  Smart devices sharing data with remote servers and smart contracts that automatically execute using blockchain technology have not yet reached critical mass within the economy.  But they will.  Policymakers are only just starting the process now of sorting through what kinds of trade standards can and should apply to this sector.

Extending the traditional trade paradigm to the electronic commerce context will raise real and difficult questions about the boundary between legitimate national rule-making activities in the regulatory arena and the applicability of treaty commitments.  Put simply: can a treaty commit overrule or preempt a national rulemaking process that does not have as its stated purpose a restriction on international trade?

These issues have been under discussion for over a decade.  They were raised originally in the context of non-tariff barriers and trade in services.  So if we want a sense of how these standards could develop, the services and NTB discussions can serve as a guide.  We can expect to see individual nations test the boundaries through consultations such as the US/Korea consultations on competition law adjudication in addition to formal TISA talk.  We can also expect to see policymakers jockey for position and standard-setting authority regarding data localization and data privacy. 

The relatively easy issues in the customs facilitation arena (electronic trade documents, electronic authentication standards) may generate early traction.  But the road to a new multilateral system runs through the data and e-commerce issues and their close cousins, non-tariff barriers.  The outlines for a global dialogue on these issues is only just emerging.  They may not generate headlines in the mainstream media, but these are the next generation of trade policy issues that will determine whether or not the multilateral trading system is sufficiently resilient to evolve and support a global economy centered on intangibles.

Barbara C. Matthews is Founder and CEO at BCMstrategy, Inc., a start-up with patented technology to measure cross-border public policy risk and anticipate outcomes.  She has served as a senior U.S. government official at the U.S. Treasury Department and as Senior Counsel to the House Financial Services Committee.  She is also non-resident senior fellow at the Atlantic Council and a member of WITA, the Council on Foreign Relations, and the Bretton Woods Committee. The views expressed here are her own.

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The history of trade reflects the ongoing march of new technological innovations. After the Second Industrial Revolution, for example, the introduction of steamships and railroads changed the economics of trading across national borders. Likewise, the digital revolution of the 1990s and early 2000s enabled companies to interact with far-flung suppliers and customers (Baldwin 2016).

Global value chains existed before the internet, but the internet further enabled fragmentation and offshoring of production by vastly improving coordination and communication costs. As China and other developing countries began participating in these production networks of specialised suppliers and assembly plants, trade flows soared and stretched around the world.

Today the next generation of technologies will reshape trade flows and global value chains again. But unlike the previous ICT revolution, these innovations will have a more varied and complex effect on trade in the years ahead. Some advances, like digital platforms, blockchain, and the Internet of Things, will continue to reduce transaction and logistics costs, thereby fuelling trade (WTO 2018). But other technologies may reduce trade flows by changing the economics and location of production, and transforming the actual content of what is bought and sold across borders. 

Companies trading across borders often lose time and money to customs processing or delays in international shipments and payments. But a number of new technologies can ease these frictions. 

Digital platforms, for instance, connect buyers and sellers directly, lowering the costs of search and coordination (McAfee and Brynjolfsson 2017). They have created seamless global marketplaces in areas such as e-commerce, payments, travel, learning, and labour services – and there is room for much more growth. Alibaba’s AliResearch projects that cross-border B2C e-commerce sales alone will reach approximately $1 trillion by 2020. B2B e-commerce could be five or six times as that figure.

While some of those transactions may substitute for traditional offline trade flows, e-commerce could still spur some $1.3 trillion to $2.1 trillion in incremental trade by 2030, boosting trade in manufactured goods by 6–10%. This will include many small businesses that can directly reach customers in other countries. EBay, Alibaba, Amazon, Jumia and other online marketplaces are enabling the rise of ‘micro-multinationals’ – today, startups tap global talent, finance, and consumers from day one (McKinsey Global Institute 2016).

Logistics technologies also continue to improve. The Internet of Things can track shipments in real time, while AI can route trucks based on current road conditions. Automated document processing can speed goods through customs. Some companies are developing fleets of self-driving trucks, and a number of ports worldwide have introduced automated cranes and guided vehicles that can unload, stack, and reload containers faster and with fewer errors.

Blockchain has potential for tracking shipments and triggering faster automated payments, although it will be some time before its scalability and success in trade can be determined. 

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The European Parliament’s adoption last September of a position on digital copyright rulesis an example of the increased willingness of European institutions to use regulations to tackle potential risks in the digital domain.[1] In this way, the EU has not only made important strides in the realm of digital copyright regulations, it has also re-confirmed its role as a global norms setter.

To read the Article published by the Instituto Affari Internazionali, click here.

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