# I. Setting the Stage: WTO Accessions and Digital Trade

WTO accession is a busy and multifaceted process that requires a major overhaul of national trade-related legal systems and institutions. Additionally, all the new World Trade Organization (WTO) Members—those who have joined the Organization through the accession process—were required to ensure that their national transformation follows certain models or even exceeds the standards set by the covered agreements. However, commitments related to trade digitization, digitalization, and digital transformation, including their regulatory underpinning, have so far only sporadically entered this paradigm.

Acceding governments have a better opportunity to integrate themselves into the WTO work related to digital trade once they are already WTO Members. This can be achieved in several ways. These include: participation in the work of the WTO Regular Bodies under the WTO Work Programme on Electronic Commerce of 1998;<fnref n="1" /> taking part in the efforts undertaken within the Joint Statement Initiative (JSI) on E-commerce negotiations,<fnref n="2" /> which have been ongoing since January 2019;<fnref n="3" /> and/or adopting the (interim) outcomes achieved by the JSI, as reflected in the stabilized text published by the co-conveners<fnref n="4" /> proactively or once that text would be open for acceptance. The accession process leaves the governments trying to make their way into the WTO with observing and preparing to engage in such (i.e. digital) work, albeit, mostly relying on the sources (and forums) external to the Organization.

This short piece explores a) the reasons for the status quo; and b) possible ways forward, which could enable acceding governments to advance the necessary digital agenda in synergy with their WTO accession processes—whether within the WTO or beyond its walls and meeting rooms.

<footnote n="1">WTO, “Work programme on electronic commerce”, online: <wto.org> [perma.cc/TG5G-PP3X].</footnote>

<footnote n="2">WTO, “Joint Statement Initiative on E-commerce”, online: <wto.org> [perma.cc/JW2E-97QB].</footnote>

<footnote n="3">WTO, *Joint Statement on Electronic Commerce*, communication circulated at the request of the delegations of Albania; Argentina; Australia; Bahrain, Kingdom of; Brazil; Brunei Darussalam; Canada; Chile; China; Colombia; Costa Rica; El Salvador; European Union; Georgia; Honduras; Hong Kong, China; Iceland; Israel; Japan; Kazakhstan; Korea, Republic of; Kuwait, the State of; Lao PDR; Liechtenstein; Malaysia; Mexico; Moldova, Republic of; Mongolia; Montenegro; Myanmar; New Zealand; Nicaragua; Nigeria; Norway; Panama; Paraguay; Peru; Qatar; Russian Federation; Singapore; Switzerland; Chinese Taipei; Thailand; the former Yugoslav Republic of Macedonia; Turkey; Ukraine; United Arab Emirates; United States; and Uruguay, WTO Doc WT/L/1056 (2019), online: <docs.wto.org> [perma.cc/S8XK-TW82].</footnote>

<footnote n="4">WTO, *Joint Statement on Electronic Commerce, Agreement on Electronic Commerce*, WTO Doc INF/ECOM/87 (2024), online: <docs.wto.org> [perma.cc/7WYW-6HZD] [*E-commerce Agreement*].</footnote>
# II. Digital Trade Rulemaking

Modern trade, including that taking place across borders, is increasingly digital. Digital trade rules touch all stakeholders involved, thus coming in G2G (government to government), G2B (government to business, or vice-versa), G2C (government to consumer, or vice-versa), B2B (business to business), B2C (business to consumer, or vice-versa), and C2C (consumer to consumer) segments. Nonetheless, most of the dedicated international digital trade rule-making currently is concerned with enabling of the B2B segment, with frequent explicit exclusion of the interactions involving governments, except for in selected regulatory instances concerned with paperless trade, open government data, or similar. Certain traction also seems to be emerging with respect to privacy regulation, extending to governments’ processing of personal data obtained from private sector<fnref n="5" />. The excluded regulatory instances are deemed to be particularly touched by the digital sovereignty concerns. While they are attracting domestic regulatory efforts, cross-border alignment is more difficult.

The palette of modern digital trade rules, as reflected in the national laws and international agreements, is large.<fnref n="6" /> While the relevant priorities vary from country to country, substantive areas deserving first-hand attention might include regulatory frameworks enabling electronic transactions, electronic payments, data governance, consumer protection online, and, increasingly, the regulation of tech—cryptography, source codes and algorithms, as well as digital standardization and conformity assessment<fnref n="7" />.

These rules matter since they support emergence, functioning, and cross-border interoperability between national digital trade ecosystems. Moreover, in the era of growing unpredictability around trade in goods, digital trade in services, albeit also increasingly regulated, might offer a viable alternative to traders, including the weakest among them—micro, small, and medium enterprises (MSMEs).

<footnote n="5">See, inter alia, OECD, Declaration on Government Access to Personal Data Held by Private Sector Entities, OECD/LEGAL/0487 (2022), online: <legalinstruments.oecd.org> [perma.cc/EFU6-4CL2].</footnote>

<footnote n="6">Please note that classifications of digital trade rules vary. The numbers reflected in the text are based on the research conducted by and estimations made by the author.</footnote>

<footnote n="7">See, inter alia, Mira Burri, Maria Vasquez Callo-Müller and Kholofelo Kugler, “TAPED: Trade Agreement Provisions on Electronic Commerce and Data”, online: <unilu.ch/taped>, (retrieved on 26 August 2025).</footnote>
# III. Digital Trade(-Related) Rules in the WTO’s Single Legal Undertaking

The WTO rulebook, being technology-neutral<fnref n="8" />, already incorporates several rules that are relevant to digital trade, including shaping its enablers, such as access to information and communication technologies (ICT) equipment, software, general and ICT infrastructure, and digital talent.

For instance, as far as trade in good is concerned, the *Trade Facilitation Agreement* (*TFA*)<fnref n="9" /> promotes advance lodging of documents in electronic format for pre-arrival processing (Article 7(1.2)), encourages electronic payment of duties, taxes, fees, and charges collected by customs upon importation and exportation (Article 7(2)); instructs governments to accept electronic copies of supporting documents required for import, export, or transit formalities (Article 10(2)); supports and electronic filing or processing in the trade administration (Article 10(7)), and enables electronic requests and the exchange of information in customs cooperation (Article 12(4 and 6)). In the same domain yet relying on the scheduling as a mean of implementation, the *Information Technology Agreement* (*ITA*),<fnref n="10" /> along with its *Expansion*,<fnref n="11" /> further enhances market access opportunities for information technology products through elimination of customs duties on a range of ICT products and components.

In the services sector, several distinct groups of sectors and sub-sectors in which commitments might be undertaken appear relevant. Among such, for example, commitments related to services enabling digital trade, covering Business Services (including computer-related services), Communications Ser- vices (such as postal, courier, and telecommunication services), Financial Services (notably payment services), Distribution Services, and Transport Services. Varied services in the sectors such as business services, education, health, tourism, financial services, and recreation services, could be provided or consumed online (e.g. via the modes I and II<fnref n="12" />). Mode III, which pertains to commercial presence, is particularly relevant for providers of financial, communications, and computing services engaged in digital trade. Finally, mode IV enables the movement of digital talent, including for knowledge transfer and capacity building supporting the development of digital ecosystems.

Regarding digital products (a separate category, classified neither as goods nor as services)<fnref n="13" />, the WTO members have adopted in 1998<fnref n="14" /> and, thus far, periodically renewed a moratorium on customs duties on electronic transmissions, preventing tariffs from being imposed on digital content as it is transmitted across borders<fnref n="15" />.

Finally, the *Agreement on Trade-Related Aspects of Intellectual Property Rights*<fnref n="16" /> provides protection for computer programs and compilations of data under Article 10, recognizing the importance of intellectual property rights in the digital economy, among others.

These aspects and their connection to digital economy should not be overlooked by the acceding governments. However, to leverage them, dedicated digital rules aligned with international standards for interoperability are also necessary. Otherwise, the national digital ecosystems will be developed in a siloed and chaotic manner.

<footnote n="8">WTO, WTO Analytical Index — GATS — Article I (DS reports), online: <wto.org> [perma.cc/QS4P-RVYC], sec. 1.3.1.</footnote>

<footnote n="9">WTO, *Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization*, WTO Dec WT/L/940 (2014), Annex.</footnote>

<footnote n="10">WTO, *Ministerial Declaration on Trade in Information Technology Products*, WTO Doc WT/MIN(96)/16 (1996), online: <docs.wto.org> [perma.cc/4AAL-EYZX].</footnote>

<footnote n="11">WTO, *Ministerial Declaration on the Expansion of Trade in Information Technology Products* (2015), online: <docs.wto.org> [perma.cc/9A79-CBCJ].</footnote>

<footnote n="12">WTO, Council for Trade in Services, The Work Programme on Electronic Commerce, Note by the Secretariat, WTO Doc. S/C/W/68 (1998), online: <docs.wto.org> [perma.cc/AXZ5-2KW6], para 7.</footnote>

<footnote n="13">WTO, Council for Trade in Services, The Work Programme on Electronic Commerce, Progress Report to the General Council Adopted by the Council for Trade in Services on 19 July 1999 (1999), online: <docs.wto.org> [perma.cc/PD75-GRJW].</footnote>

<footnote n="14">WTO, The Work Programme on Electronic Commerce, *Declaration on global electronic commerce*, Adopted on 20 May 1998, WTO Doc WT/MIN(98)/DEC/2, online <wto.org> [perma.cc/M8RC-J48F].</footnote>

<footnote n="15">WTO, Ministerial Conference Thirteenth Session, Abu Dhabi, 26 February—2 March 2024, *Work Programme on Electronic Commerc*e, Ministerial Decision adopted on 2 March 2024, WTO Doc WT/MIN(24)/38, WT/L/1193, online: <docs.wto.org> [perma.cc/Q5Z3-Q9FH].</footnote>

<footnote n="16">*Agreement on Trade-Related Aspects of Intellectual Property Rights*, Annex 1C of the*Marrakesh Agreement Establishing the World Trade Organization*, 15 April 1994, 1869 UNTS 299.</footnote>
# IV. A “Bonus”: The Rules Elaborated by the Other, “less than Multilateral” Working
        Groups and Initiatives

The outputs of several JSIs beyond the WTO JSI on E-commerce also refer to support adoption and cross-border alignment of digital trade rules.

The Informal Working Group on Micro, Small and Medium-sized Enterprises (MSMEs),<fnref n="17" /> which reunites over 100 WTO Members, features in its outputs access to finance, cross-border payments, global legal identification, transparency, exchange of information on skills and capacity building efforts, and SME regulatory stakeholder engagement.<fnref n="18" />

The outcome of the JSI on Investment Facilitation for Development, the *Investment Facilitation for Development Agreement*,<fnref n="19" /> provides for the publication by electronic means of measures of general application to facilitate outward foreign direct investment (Article 6.5) and of the information to be made publicly available if authorization is required for an investment (Article 7); addresses the establishment of a single information portal (Article 8.1), and processing (Article 15) and submission of applications online, using electronic forms (Article 18). It is important to ensure that such functionalities are available not only to national stakeholders, but also to the foreign ones.

<footnote n="17">WTO, “Informal Working Group on Micro, Small and Medium-sized Enterprises (MSMEs)”, online: <wto.org> [perma.cc/PUX3-BLRU].</footnote>

<footnote n="18">WTO, *Declaration on Micro, Small and Medium-Sized Enterprises (MSMES)*, WTO Doc INF/MSME/4 (2020), online: <docs.wto.org> [perma.cc/U96S-J36R].</footnote>

<footnote n="19">WTO, *Investment Facilitation for Development Agreement*, WTO Doc INF/IFD/W/55 (2024), online: <docs.wto.org> [perma.cc/BCB9-BNUS].</footnote>
# V. Dedicated Digital Trade Rulemaking at/“Hosted” by the WTO, its Outcomes, and their
        Future

The multilateral level work within the WTO Work Programme on Electronic Commerce, does not have a negotiations mandate<fnref n="20" />. Nevertheless, it has produced a politically binding, albeit temporary outcome—a moratorium on customs duties on electronic transmissions, periodically renewed this far<fnref n="21" />. In its turn, the Joint Statement Initiative on E-commerce, reuniting a subset of the WTO Members, has given itself a mandate to negotiate back in 2019.<fnref n="22" /> Pursuing the latter, the JSI has come up with an outcome—a stabilized text, endorsed by many, yet not all its participants.<fnref n="23" /> This instrument covers several important digital trade-related topics, albeit falling short on some others, notably, the regulations of cross-border data flows/data localization and digital tech. Since several issues on the JSI agenda have not made it to stabilized text, its substantive work has a potential to continue, along the lines of such agenda, into the future.

Some of the supporters of the stabilized text of the WTO *E-commerce Agreement*requested its incorporation into the legal framework of the WTO as a plurilateral agreement.<fnref n="24" /> Since others abstained and several non-participating WTO Members oppose this solution, not only for e-commerce, but also for the agreement resulting from work of the JSI on Investment Facilitation for Development, the success prospects of the same remain deemed.

Selected commentators emphasize on the importance of making of the *E-commerce Agreement*produced by the dedicated WTO JSI a plurilateral agreement.<fnref n="25" /> However, it might be argued that this extra formalization, despite being desirable for reinforcing the WTO’s relevance and giving the text (even) better “legitimacy”, is not indispensable. This is due to nature of most of the rules contained therein, which presuppose regulatory adjustments in the domestic legal frameworks. Such “domestic regulation”- type disciplines would most likely apply across board (i.e. on de facto most favoured nation (MFN) basis) anyway, since their selective regulatory embedding and application might not be technically feasible in some cases or generate higher implementation costs in others. It is true that the imperfections in implementation of such rules would not be challengeable to the WTO Dispute Settlement, something that plurilaterization might possibly allow. However, the WTO’s “jewel of the crown” is not living its best days anymore, this way mitigating the consequences of this arguable loss.

Scheduling, recently used as a solution by the participants of the JSI on services-domestic regulation<fnref n="26" /> (the *Reference Paper on Services Domestic Regulation*<fnref n="27" />), could hardly be appropriate for the *E-commerce Agreement* either. In part, since the disciplines shaped are associated neither with goods nor with services domains, making it difficult to find a schedule to which they might be duly joined.

<footnote n="20">WTO, *Work Programme on Electronic Commerce*, Adopted by the General Council on 25 September 1998, WTO Doc WT/L/274, online: <docs.wto.org> [perma.cc/N7G2-EPT2].</footnote>

<footnote n="21">*Work Programme on Electronic Commerc*e, *supra* note 15.</footnote>

<footnote n="22">WTO, *Joint Statement on Electronic Commerce*, WT/L/1056, online: <docs.wto.org> [perma.cc/MV9N-TQH6].</footnote>

<footnote n="23">Brazil, Colombia, El Salvador, Guatemala, Indonesia, Paraguay, Taiwan, Türkiye and the US did not support the “stabilised” text released on 26 July 2024 (*E-commerce Agreement*, *supra* note 4).</footnote>

<footnote n="24">WTO, “Incorporation of The Agreement on Electronic Commerce Into Annex 4 of the WTO Agreement: Communication from the Members Parties to the Agreement On Electronic Commerce”, WTO Doc WT/GC/W/96 (2025), online: <docs.wto.org> [perma.cc/9JNM-XY4A].</footnote>

<footnote n="25">See e.g. Gabrielle Marceau & Anand Nandakumar, “How Can the JSI on E-commerce Become Part of the WTO Framework?” (2025) 20:5 Global Trade & Customs J 309 at 313.</footnote>

<footnote n="26">WTO, “Services Domestic Regulation”, online: <wto.org> [perma.cc/K69B-ZEGU].</footnote>

<footnote n="27">WTO, *Joint Initiative on Services Domestic Regulation*: *Reference Paper on Services Domestic Regulation*, WTO Doc INF/SDR/2 (2021), online: <docs.wto.org> [perma.cc/6DSR-UKRP].</footnote>
# VI. Digital Trade Rules in the Accession Packages

The basic regulation of the WTO accession, as embedded in Article XII(1) of the *Marrakesh Agreement*,<fnref n="28" /> refers to joining the Organization on the terms agreed between the acceding government and the WTO Members, without setting strict limits to such terms and, thus, arguably allowing space to accommodate terms other than those embedded in the WTO Single Legal Undertaking. The same is confirmed by the practice of implementation of the provision throughout 18 accessions completed this far.

Nevertheless, the accession package should be accepted by the WTO Members by consensus and there seems to be no consensus over the place of the JSI on E-commerce (or broader array of the “new” issues) in the legal framework of the WTO, the incorporation of the digital trade-related provisions or the undertaking to join the WTO JSI on E-commerce, appears to be unlikely.

<footnote n="28">*Marrakesh Agreement Establishing the World Trade Organization*, 15 April 1994, 1867 UNTS 154 art XII(1) [*Marrakesh Agreement*].</footnote>
# VII. The Contribution of the WTO Accession to Solving Digital Trade Related Barriers
        and Lacunas Left

Despite the lack of direct embedding of the dedicated digital trade rules in the accession protocols, it might be argued that the WTO accessions are having a positive impact on certain bottlenecks faced by the acceding governments’ digital trade-related ecosystems.

Most of the acceding governments are developing countries in their essence, especially as far as their digital trade-related ecosystems are concerned. Some of them are LDCs. This means that they (and, in particular, their stakeholders) face important barriers on the way to digital transformation. These are summarized in Table 1 below.

<table><caption>Table 1 — Major barriers on the way to digital transformation faced by the developing countries and their stakeholders</caption><tr><td>Awareness Barriers Infrastructure and Equipment — Related Barriers Strategic and
            Stakeholder Coordination Barriers Capacity Barriers RegulatoryBarriers Lack of awareness
            about the rules and policies necessary for modern and interoperable digital
            economyInsufficient connectivity due to limited telecom and ICT InvestmentLack of
            strategies shaping the way forward supported by digital tech and data, including unclear
            prioritization of tasks and aimsLack of mastery of the digital context across
            sectorsAbsent or outdated regulatory frameworks, incl. fragmented / non-interoperable /
            not implemented regulations Lack of awareness about the level of the national digital
            trade readinessHigh equipment and software costs in IT-scarce economiesLack of
            coordination between public sector stakeholdersLack of digital talent, incl. due to the
            restrictions in digital talent mobility and insufficient knowledge transfer Limited
            participation in making regional & global digital rules & standardsLack of
            awareness of who is or must be involved in digital trade implementation Telecom market
            barriers and lack of sectoral competitivenessInsufficient institutional support  Lack of
            understanding of and support to business process re-engineering necessary for
            digitalization Reliance on siloed or outdated technology and lack of technological
            interoperability Lack of private sector / industry input</td></tr></table>

WTO accession in itself might help to reduce some of these barriers (see the barriers marked yellow above). However, a more targeted action focused on the digital trade enabling, coupled with technical assistance, might be necessary for addressing others.
# VII. Way Forward, Within and Beyond the WTO

Digital trade regulation is no longer a luxury. It is a necessity, for all—the WTO Members and the governments, which have not yet joined the Organization. Inevitably, this topic raises vivid interest.

Such interest in digital trade from acceding governments, especially when translated into concrete steps towards its practical reflection, might result in benefits for them. Among such potential gains: attracting technical assistance for e-trade enabling; supporting dedicated capacity building, including for cross-sectoral stakeholder engagement in the elaboration of new policies; reinsuring potential investors; and assuring sufficient capacity to engage in shaping the future agenda of digital trade. These positive effects could create important synergies with the other developments reinforcing domestic trade-related and overall ecosystems.

Since national digital trade-related regulatory landscapes are rarely virgin, the acceding governments might consider starting from evidence-based gap analysis, identifying presence of the national digital trade rules and policies, as well as the level of their alignment with international best practices, which could pave way to interoperability. They should also engage with the digital trade rule making forums and consider aligning with the substantive content of the WTO JSI on E-commerce, to the extent of the information available. During their accession, they might be advised to have in mind Market access for ICT products, e-TFA rules implementation, Digital supply/consumption of services, Movement of digital talent, and others.

Meanwhile, it remains an open question whether digital trade should be explicitly included in accession packages, even should such an opportunity arise. Including digital trade could strengthen the WTO’s relevance and might serve as an additional positive credential for new WTO Members. It might also amount to an extra anchor for domestic reforms on the way to digital transformation. On the flip side, expanding the already overstretched accession packages further might put extra pressure on the stakeholders already overwhelmed with a panoply of the other trade rules, which they should accommodate, and further increase differences in the legal statuses of the WTO Members, which is not desirable.