INF/ECOM/3  
 
25 March  2019 
(19-1851) Page: 1/6 
 Original: English  
 
EXPLORATORY WORK ON ELECTRONIC COMMERCE* 
NON-PAPER FROM BRAZIL  
The following non -paper, dated 1 1 April 2018, is being circulated at the request of the delegation of 
Brazil.  
 
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1. Brazil welcomes the Ministerial Decision on the Work Programme on Electronic Commerce 
adopted at MC11 in which Ministers stated that Members "will endeavour to reinvigorate" relevant 
work, "based on the existing mandate as set out in WT/L/274 " (WT/MIN(17)/ 65). In the same spirit, 
on 13 December 2017, on the margins of MC11, 71 Members circulated the Joint Ministerial 
Statement on Electronic Commerce, calling for the initiation of "exploratory work […] toward future 
WTO negotiations on trade -related aspects of electronic commerce " (WT/MIN (17)/60).  
 
2. Brazil has already submitted three recent contributions on e -commerce1, one of them with 
Argentina on electronic commerce and copyright and another one with Argentina and Paraguay on 
electronic signatures. This  non-paper builds upon previous contributions from Brazil and other 
Members and is intended to provide technical input for the exploratory work.  
 
1  SCOPE  
1.1.  The mapping of e -commerce issues presented by the co -sponsors of document 
JOB/GC/116/Rev.2 remains a use ful reference for the exploratory work. Brazil is of the view that 
current discussions should encompass all trade -related aspects of electronic commerce.  
1.2.  In order to facilitate and organize the exploratory work, it might be useful to group issues 
under thr ee headings2, further developed in the next sections of the non -paper:  
a. Principles : Members might wish to discuss possible principles that would be applicable to 
electronic commerce;  
b. Development : Development should be a central and cross -cutting element in the 
discussions of the exploratory work;  
c. Four negotiating pillars3: possible issues for rule -making or market access negotiations 
could be grouped under four pillars:  
                                                
* This document was originally circulated as JOB/GC/ 176 dated 12 April 2018.  
1 JOB/GC/98, JOB/GC/113/Rev.1 and JOB/GC/115 . 
2 This schematic categorization is meant only to help organize the exploratory work and to give a better  
understanding of the different areas involved in the discussio ns and does not prejudge Brazil' s positions on many 
of the issues, unless such positions are clearly stated. It is not an end in itself and it should not detract discussions 
from substantive is sues. 
3 The reference to negotiating pillars and to a possible reference paper in one of the pillars is not meant 
to prejudge the format of any negotiated outcome on electronic commerce.  INF/ECOM/3  
 
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  i. Market access: work under this pillar can be pursued under existing GATT and GATS 
rules a nd would not require, in principle, new rule -making;4 
ii. Electronic commerce facilitation: topics under this pillar would include issues that are 
enablers of electronic commerce. The technical, specific and rather uncontroversial 
nature of those issues sugges ts that they could be readily translated into rule -making 
provisions;  
iii. Electronic commerce development: the further development of electronic commerce is 
linked to developments in some key areas. Differently from the previous pillar, issues 
under this pilla r are "issues on their own " and would require specific deliberation before 
turning into rule -making;  
iv. Electronic commerce reference paper: this pillar would include core -topics of electronic 
commerce and would most probably require rule -making.  
1.3.  The multi -layered nature of electronic commerce and the heterogeneity of Members ' interests 
and constraints suggest the need of a flexible approach regarding any possible WTO outcome on the 
matter.  
1.4.  This flexibility could be achieved by allowing developing and least -developed Members to 
identify the components among and within the four pillars they are prepared to adopt and market 
access negotiations they are prepared to join. Commitments in this rega rd might include particular 
timetables for the adoption/implementation of specific components. The flexible combination of 
different outcomes might ensure a level of ambition that is tailor -made to each developing and least -
developed Member, without necess arily reducing the overall level of ambition on electronic 
commerce negotiation as a whole.  
2  PRINCIPLES  
2.1.  The exploratory work could include a discussion on some principles that would be applicable to 
electronic commerce:  
a. The Internet should remain free and o pen for all legitimate commercial and development 
purposes, including by allowing increased access to information, knowledge and new 
technologies. As a general rule, rights and obligations should be the same and apply 
equally offline and online.5 
b. Members shall retain the right to regulate in the public interest and to introduce new 
regulations within their territories so as to achieve public policy objectives.  
c. Electronic documents and electronic signatures shall produce the same legal effects as 
those of paper documents and handwritten signatures, subject to Members ' domestic laws 
and regulations on electronic documents and electronic signatures. Members shall ensure 
that their legal systems allow contracts to be concluded by electronic means and th at the 
legal requirements for contractual processes neither create obstacles for the use of 
electronic contracts nor result in such contracts being deprived of legal effectiveness and 
validity on the ground of having been made by electronic means.  
d. The appl ication and review of policies and measures affecting e -commerce shall be 
transparent. To the extent possible, relevant stakeholders should have an opportunity to 
comment on proposed laws and regulations or changes to existing ones prior to their 
implement ation.  
                                                
4 The possibility of negotiating market access under new rules might be explored in the future.  
5 This principle has already been suggested by Brazil and the United States in documents JOB/GC/98 and 
JOB/GC/94, respectively.  INF/ECOM/3  
 
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  e. The promotion of increased access and participation of women both as consumers and as 
traders in electronic commerce should be a key element of any electronic commerce 
outcome in WTO.  
f. Any outcome in the WTO on the matter should address the needs of and challenges faced 
by Micro, Small and Medium Enterprises (MSMEs) regarding electronic commerce .6 
3  DEVELOPMENT  
3.1.  Development is a central element of the discussions on electronic commerce. It has a horizontal 
nature and needs to be embodied into any WTO out come on electronic commerce. In this regard, 
the E-Commerce for Development Agenda suggested by Costa Rica (JOB/GC/139) constitutes a good 
basis for further work, as it would enable the assessment of the needs of developing countries in 
relation to e -comme rce and would facilitate focused dialogue on the challenges and opportunities 
they face. In particular, discussions might address the difficulties that a number of companies and 
services suppliers from developing countries must tackle in order to participa te in large digital 
platforms.  
4  FOUR NEGOTIATING PIL LARS  
4.1  Market access  
4.1.  Some Members may be interested in engaging in electronic commerce -related market access 
negotiations. Such negotiations could target:  
(i) services and non -services sectors related to ne w business models based on digital 
environment; and  
(ii) services and non -services sectors related to the infrastructure of the digital environment.  
4.2.  Under category (i): 
• The services component might benefit from a discussion of the classification of the sub -
sector 1.B "computer and related services " of the Services Sectoral Classification list 
(document MTN.GNS/W/120) - document TN/S/W/60 could be a useful reference in this 
regard. Consideration about the negotiation of new associated GATS Article XVI and Article 
XVII commitments could also be relevant.  
• The non -services component – meaning the commercialization of goods by electronic 
means – might include the discussion of topics suggested by China under section 2 of 
document JOB/GC/142, for example. Should a  commercial transaction through an 
electronic platform in which a good is provided or delivered physically be considered as 
electronic commerce or should it be considered a traditional transaction based on the 
technological neutrality principle applied to the GATT?  
4.3.  Under category (ii):  
• The services component could entail the consideration of the negotiation of new GATS 
article XVI and article XVII commitments under sub -sector 2.C "Telecommunication 
services " of the Services Sectoral Classification. A reasse ssment of the Telecommunication 
Reference Paper might be useful as well. As Brazil pointed out in an earlier submission 
(JOB/GC/98), in order to ensure an open and free environment for the development of e -
commerce, telecom operators/Internet service provi ders should not be allowed to 
discriminate data packages by its content, origin and destination, service, terminal or 
application, through public networks, except for emergency communications and for 
technical requirements indispensable to the adequate pro vision of services and 
applications. In this regard, the principle of network neutrality would have to be discussed.  
                                                
6 JOB/GC/127 is a useful reference.  INF/ECOM/3  
 
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  • Dealing with the non -services component might lead to a discussion involving tariff 
reduction of goods related with digital infrastructure.  
4.4.  In case of negotiations under paragraphs 10 and 11, revisiting the issue of technological 
neutrality of the GATS might prove unavoidable. Jurisprudence has already made it clear that "a 
market access commitment for mode 1 implies the right for other Membe rs' suppliers to supply a 
service through all means of delivery, whether by mail, telephone, Internet, etc., unless otherwise 
specified in a Member's Schedule. " WT/DS285/R, par a. 6.285). Nonetheless, it seems unreasonable 
to assume that commitments underta ken by Members in the early 90 's can be automatically 
extended, under the technological neutrality argument, to cover the completely new and 
revolutionary businesses models based on digital environment. In order to avoid long and possibly 
inconclusive deba tes, it might be useful to consider a separation between new and old commitments.  
4.5.  Some consideration might also be given to the cyberspace trade barriers referred to by Chinese 
Taipei in document JOB/GC/170 and the relation to GATS article XVI restrictions. Discussions could 
include, for instance, the issue of transfer and/or access to source code.  
4.6.  Members should consider the convenience of adopting a common understanding that 
commitments regarding cross -border electronic transmissions are cover ed exclusively by Mode 1, 
as raised by Brazil in document JOB/GC/98, or by both Modes 1 and 2.  
4.7.  It is to be expected that a number of delegations will be interested in discussing the practice 
of not imposing customs duties on electronic transmissions on a permanent basis. Discussions shall 
also include the views reflected in paragraph 6.5 of JOB/GC/144 submitted by the African Group, in 
document JOB/GC/171 from Chinese Taipei and in document WT/MIN(17)/68 from Indonesia. It is 
possible that such an outcome would be part of a broader and balanced set of commitments.  
4.2  Electronic commerce facilitation  
4.8.  Under the electronic commerce facilitation pillar, several issues could be discussed as important 
enablers of e -commerce:  
a. Electronic authentication, trust services  and electronic signatures. The drafting language 
proposed by the European Union  in document TN/S/W/64 and the contribution made by 
Argentina, Brazil and Paraguay in document JOB/GC/115 are useful input for the 
discussions on the matter.  
b. Unsolicited comme rcial electronic messages. The drafting language proposed by the 
European Union  in document TN/S/W/64 is a useful input for the discussions on the 
matter.  
4.9.  An item of crucial importance in the facilitation of electronic commerce is consumer protection. 
The drafting language proposed by the European Union  in document TN/S/W/64 could serve as 
useful point of departure for the discussions on the matter. Although it embodies the principles 
raised by Brazil in document JOB/GC/98, further elements might have to b e added to that draft. 
Another issue that could be considered is to clarify that the sale of a good by electronic means or a 
sale of an electronic transmission can only be considered completed after the return period has 
lapsed.  
4.3  Development of electronic c ommerce  
4.10.   Under the pillar related to the development of electronic commerce, at least two important 
issues would have to be discussed:  
a. The remuneration of artists and performers is a market -place issue that rests upon the 
bargaining power of the different actors involved with the copyright ecosystem. The WTO 
could contribute to the reduction of the asymmetries of information between the relevant 
actors of this ecosystem by increasing the level of transparency regarding the 
remuneration of copyright and rela ted rights in the digital environment. A second 
contribution of the WTO to improve the business environment in the electronic copyright 
trade is reaffirming the territoriality of copyright in the digital environment as a principle INF/ECOM/3  
 
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  of the international trad ing system. Finally, the principle that exceptions and limitations 
available in physical formats should also be made available in the digital environment 
should be discussed as well. Those elements have been previously addressed by Argentina 
and Brazil in document JOB/GC/113 /Rev.1 . 
b. Payments made via the Internet as well as mobile banking are key instruments to further 
develop e -commerce. The use of electronic payment systems depends, to a large extent, 
upon a proper domestic regulatory environment. Discussi ons might lead to explore ways 
to help Members improve their internal regulatory framework in this regard, in full 
conformity with their right to regulate and pursue public policies. The note by the 
Secretariat contained in document S/FIN/W/88/Add.1 contai ns useful input in this regard.  
4.4  Reference paper on electronic commerce  
4.11.   This pillar includes core -topics of electronic commerce that would require rule -making, since 
they are not explicitly addressed in existing WTO agreements. Although disciplines relating  to these 
issues may be easy to translate into WTO rules, its complexity and overarching consequences require 
an in-depth analysis of the matters involved.  
4.12.   The point of departure of the discussions might be the degree to and the conditions under 
which dig ital data shall be allowed to flow.  
4.13.   On the one side of the spectrum of positions in this regard is the view that there should be 
no limitations to the free flow of digital data7. Nonetheless, in fulfilling their duties, regulators will 
find themselves in situations where limitation of dataflow is unavoidable. The general and the 
security exceptions of GATS Articles XIV and XIV  bis are useful provisions in this regard but both 
were not specifically drafted for the digital environment. Therefore, it might be  useful to consider 
how improved disciplines would clarify the general and security exceptions appropriate for the digital 
environment.  
4.14.   The voluntary adoption of international standards of privacy by design and default and of 
security by design and default  should be discussed.  
4.15.   Some of the issues that would have to be discussed in this regard are, among others:  
a. privacy of individuals, consumers and medical patients;  
b. cybersecurity;  
c. terrorism;  
d. crimes such as paedophilia;  
e. human rights (freedom of expression, o f communication, of manifestation and of 
association; access to information; and non -discrimination);  
f. disinformation.  
4.16.   One challenging question regarding the digital environment is the issue of jurisdiction and the 
ability to enforce national law. This is o ne of the reasons behind some computing facilities/server 's 
localization requirements enacted by some governments. It might be useful to discuss concepts like 
universal jurisdiction or choice of jurisdiction applicable to electronic commerce.  
4.17.   What seems to be a slightly different issue is whether disciplines on the usage of big data will 
require a jurisdictional debate as well.  
                                                
7 JOB/GC/94 . INF/ECOM/3  
 
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  4.18.   Besides the situations and conditions under which regulators might put restrictions to the free 
flow of data, it could also be re levant to discuss possible rules applicable to the flow of digital data 
not limited by the reasons listed under paragraph 4.15 above.  
4.19.   One issue that should be discussed is the ownership of data produced in different jurisdictions. 
That is particularly rele vant in the case of some categories of personally identifiable information. If 
ownership on this kind of data can be established, one might elaborate about possible conditionalities 
and rules that would be applicable for this data to move from one jurisdic tion to another.  
4.20.   Another issue that would require attention is the necessity of rules applicable to online 
platforms and their algorithms. What type of responsibility should online platforms bear with regard 
to the database they own and administer? The issue of content responsibility should deserve close 
consideration in the exploratory work.  
4.21.   A final issue that might entail fruitful discussions is the treatment of large online platforms, 
since their position bea r strong resemblance with traditional natural monopolies. Discussions on new 
approaches to competition policy can account for this issue. Issues like data portability and non -
discriminatory access might be relevant concepts in this regard.  
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