RESTRICTED  
  
TN/S/M/47  
 
27 June 2017  
(17-3443) Page: 1/15 
Council for Trade in Services  
Special Session    
 
REPORT OF THE MEETIN G HELD ON 6 JUNE  2017 
NOTE BY THE SECRETAR IAT1 
The Special Session of the Council for Trade in Services held a formal meeting on 6 June  2017. 
The agenda, contained in document WTO/AIR/ TN/S/ 3, was adopted.   
1  ITEM A : AN ENABLING ENVIRONM ENT TO FACILITATE ONLI NE TRANSACTIONS  
1.1.  The Chairperson  said that the European Union had submitted a new communication entitled 
"An Enabling Environment to Facilitate Online Transactions", which was contained in TN/S/W/64.  
The purpose of t he meeting was to dis cuss this proposal.   
1.2.  The representative of the European Union  presented the proposal. His delegation was  
determined to ensure that the 11th Ministerial Conference (MC11) deliver ed an updat e to the 
multilateral trade rulebook. One o f the main added values o f the WTO was that it established 
global regulatory benchmarks facilitat ing the supply  and consumption of services, for the benefit of 
consumers a s well as of both foreign a nd domestic services suppliers.  He consider ed that agreeing 
on a set of multilatera l disciplines to facilitat e online trade in services was a test for the WTO and 
its membership in terms of their readiness to respond to the opportunities and challenges of the 
modern economy and to address the obstacles faced by  service suppliers . Progres s in this area at 
the WTO would have systemic benefits . It would prove the relevance of the multilateral system 
and deliver  disciplines with tangible results for service suppliers  and consumer s. Despite the fast 
development of the digital economy in past d ecades, little progress had been achieved in t he WTO  
in that regard . Since the Nairobi Ministerial, many delegations h ad acknowledged major gaps in 
the multilateral rulebook and demonstrated interest to consider trade -related issues for the online 
economy.  His delegation's proposal was inspired by the many debates and events that took p lace 
in Geneva over the past year, including UNCTAD 's E-Commerce Week and the events organised by 
the Friends of E -commerce for Development.  
1.3.  The representative favoured de livering results through an incremental process , rather than 
through an all -encompassing or over-ambitious proposal.  His delegation's proposal provide d for 
small and concrete elements that were relevant for the current services trade  environment . 
Mindful of views expressed by Members, the proposal was intended to be a response to the debate 
so far on digital trade . He wished to address a number of points in that regard.  Many Members ha d 
questioned whether there was a mandate, but t he proposal was about regulat ory disciplines on 
trade in services, a matter that was part of the built-in agenda of the GATS . Article XVIII of the 
Agreement provide d a legitimate legal basis for negotiations in this area.  Further , the proposal  was 
deliberately limited to issues that were non-contentious.  Well-known sensitivities had been left 
aside.  
1.4.  Moreover, the proposal was not about additional liberaliz ation.  It did not call for  
commitments on market access and national treatment . The proposed rules would not increase 
foreign compet ition, but rather aimed to pro mote a regulatory environment benefit ting both local 
and foreign suppliers.  His delegation had taken good note of the concerns expressed with respect 
                                                
1 This document has been prepared under the Secretariat's own responsibility and is without prejudice 
to the positions of Members or to their rights and obligations under the WTO.  
 
 TN/S/M/4 7 
 
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  to the right to regulate and the ne ed for policy space.  For this reason, the proposal only suggest ed 
agree ing on legally binding principles and objectives, leaving it for each Member to choose t he 
best way to implement those objectives, in accordance with its own regulatory tradition and 
practice.  He also considered that the propo sed text would support  the integration of small and 
medium -sized enterprises (SMEs)  in global trade.  Greater legal certainty and predictability  would 
primarily benefit  the weaker operators, namely SMEs.  Discussions on digital trade over the 
last 18 months had shown that it was critical to establish an environment that facilitate d the 
participation of SMEs in the digital economy.  The propos ed rules would create an enabling 
environment for businesses by enhancing legal certainty . They would also improve  the trust of 
consumers , who w ould feel better protected and therefore ready to engage to a greater extent in 
online trade.  
1.5.  The representative indicated that the main sources of inspiration for the proposed text were 
the existing practice of WTO Members in vario us bilateral and regional trade agreements , as well 
as international practice as reflected in UNCITRAL model laws.  Within the European Union, a set of 
rules in relation to online trade had been developed to suit the diversity of situations across the 28 
Member States, and this had also been taken into account.  The proposal focuse d on a limited set 
of topics: (i) consumer protection; (ii) spam; (iii) authenticati on and trust services; and 
(iv) electronic contracts.  Together , those four topics  cover ed all ste ps in volved in  an online 
transaction in relation to trade in services. The proposed t ext start ed with the preamble , which 
introduce d the objectives and rationale.  Subsequently , the  first two paragraphs focus ed on 
consumer protection.  Effective consumer pro tection was a key element in online trad e and the 
cornerstone of an  enabling environment.  At the same time, he did not think that the WTO should 
set consumer protection standards . Accordingly , his delegation propose d to limit the provision to a 
binding pri nciple only, leaving Members with the flexibility to define the exact content  and form of 
the relevant measures.  Paragraph 1 addressed fraudulent and deceptive practices, but also aimed 
to enhanc e consumer trust more generally . Paragraph 2 recognise d the importance of regulatory 
cooperation  and contain ed an encouragement for the regulatory authorities in that regard . 
1.6.  The next section of the text , covering paragraphs 3  to 6, address ed unsolicited commercial 
electronic messages – or spam.  Like for  consumer pr otection , the aim was to create an enabling 
environment where the service providers and consumers would have confidence to do business 
online.  Paragraph 3 contain ed a broad obligation to protect consumers against any form of spam. 
This was a technology neu tral provision. Paragraph 4 propose d rules that cover ed the opt -in and 
opt-out options, which gave consumers the choice to rece ive, or not, unsolicited commercial 
electronic messages.  He thought that it was more realistic to limit such rule to e -mails only . 
Paragraph 5 offer ed means of recourse for consumer s, while p aragraph 6 provided  that spam 
should be easily identifiable.   
1.7.  The set of issues in paragraphs 7  to 9 of the proposal concern ed electronic authentication and 
trust services . At UNCTAD 's E-commerc e Week last April, these  services had been identified as 
enhancing the participation of SMEs in cross -border services trade , and as of particular  relevan ce 
for developing countries.  For many on -line transactions, it was necessary to verify  the identity of 
the owner of the w ebsite.  Similarly, the electronic signature of a final agreement m ight also 
require identifying the different signatories to ensure that they ha d expressed their consent.  
Paragraph 7  provided for non-discrimination regarding evidence in l egal proceedings.  Paragraph  8 
proposed that parties not be prevented from determin ing the electronic methods of their 
transaction s and from having the opportunity to prove that they complied with legal requirements 
regarding these services.  Paragraph 9  recognise d that governments might impose additional 
requirements in relation to certain types of transactions.  Paragraph 10  of the proposal dealt with 
electronic contracts.  For online trade to develop, it was fundamental to e nsure that the validity of 
electro nic contracts  not be questioned . Such a basic rule was inspired by the UNCITRAL Model L aw 
on E-commerce.  In footnote 1  of the proposed text , his delegation had included ce rtain exceptions , 
covering s tandard situations where countries would require paper co ntracts , for example when 
buying real estate or when dealing with contracts requiring the involvement of courts.  
1.8.   The proposal concluded in paragraph 11 wit h a placeholder for development -related 
provisions.  The representative considered that th is was an important element of the future 
multilateral text and he was ready to hear from developing countries and LDCs about their 
challenges and needs in relation to the implementation of each provision.  He hoped for feedback 
on necessary flexibilities for implemen tation or on technical assistance required to reinforce 
regulatory capacity.  His delegation had reflected about th e latter element and ha d already taken TN/S/M/4 7 
 
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  some st eps towards streamlining its development assistance in this area.  One example was the 
upcoming r evision of the E uropean Union 's aid-for-trade strategy , where online trade was being 
considered as a priority area for future support . Another example was t he forthcoming revision of 
the European Investment Plan , which involved potential actions to support  digitalisation  and a 
separate strand of work to support  the building and updating of national regulatory frameworks, 
including with respect to online trade.  Further, the E uropean Union  was developing specific 
initiatives, such as Digital4Development , whic h envisage d streamlining development assistance  in 
four priority areas related to the digital economy.  This initiative initially focuse d on Africa, offering 
development assistance as early as 2017, and was foreseen to gradually expand  to other regions 
with projects planned until 2020.  
1.9.  The representativ e said that the proposed disciplines would apply across the board, namely 
to all services covered by the GATS.  This proposal was a starting point for a negotiation that 
should lead to the establishment of a n enabling environment for the development of online 
services trade.  He welcome d views and comments from delegations.  His delegation was 
determined to engage on this topic and he saw scope for taking a step forward on those issues at 
MC11 . He thought that the  proposal was fully  compatible with broader discussions on the longer -
term WTO work on e-commerce . Achieving an outcome on th is limited set of issues w ould benefit 
the membership at large and provide tangible results for both developed and developing count ries. 
He thought that the  WTO need ed to demonstrate its continued relevance in the modern economy  
and h e invite d Members to actively engage  in bringing this work forward.  
1.10.   The representative of Switzerland  believed that multilateralism should be at the cent re of 
activities in the organization  and supported the approach taken  in that regard by the European 
Union . The topics covered were particularly suited for a multilateral solution.  One could try to 
tackle issues relating to spam or authentication through b ilateral channels, but it was much more 
relevant, at least at the level of principles, to first attempt to address these topics multilaterally.  
Additional details could be addressed in regional contexts.  He considered that the selection of the 
topics cover ed by the proposal was judicious and relevant.  Many issues could be discussed in the 
area of e -commerce , but some were difficult or unrealistic.  Issues selected for this proposal 
seemed the most realistic and the least troublesome.  His delegation would for  now focus on the 
proposed text as it was, but additional suggestions would be considered on their merits.   
1.11.   He noted that the proposal covered all services sectors.  That corresponded to the reality of 
e-commerce in Switzerland.  He stressed that consumer pr otection was a fundamental aspect in the 
development of e -commerce , especially c ross-border . His delegation had a particular interest in 
authentication  because work had been undertaken on these matters for some time and he hoped 
to be able to make a contri bution to discussions.  Regarding electronic contracts, his country 's 
experience had showed how clarifying relevant aspects of cross -border contracts was essential for 
the operations of a number of enterprises.  He thought that development provisions would b e 
necessary.  Any proposal in the WTO would need to address the implications deriving from the 
varying levels of development across the membership.  He hoped that developing countries could 
make suggestions in view of their needs in th at regard.  His delegati on would continue to engage to 
help move the substantive discussions forward.  
1.12.   The representative of Argentina  believed that the proposal provided a good basis to initiate 
discussions on e -commerce in the area of services.  He thought that the section on ele ctronic 
authentication was linked to the experience of Mercosur, which Argentina, Brazil and Paraguay had 
presented i n an earlier communication . Like the proposal from the European Union, the 
contribution from Mercosur had h ighlighted the legal value of el ectronic signatures , and their 
importance in facilitating e -commerce by providing guarantees in relation  to the identit y of parties 
to electronic contracts.  With respect to unsolicited commercial electronic messages, the legal 
framework in Argentina met th e standards of protection mentioned in the proposal, notably 
through the Law on the Protection of Personal Data (L aw No. 25.326) as well as Article 27 of 
Annex 1 to the Decree No. 1558/01 . Among other things, these measures provided that 
communications for  advertising purpose s had to be clearly identified as such, and that consumers 
had the right to have their information blocked or withdrawn from databases used for such 
communications.  
1.13.   He considered that the suggestion to allow the incorporation of langua ge on the 
participation of developing countries was positive.  Discussions in the Special Session should 
contribute to the elaboration of this section of the proposal.  The representative wished to TN/S/M/4 7 
 
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  emphasize another aspect, which he thought had systemic valu e. Indeed, the proposal marked the 
launch of discussions on e -commerce in a multilateral setting, which allowed all Members to 
intervene and exert influence on the outcome.  This was important because rules were often 
elaborated in other settings , where dev eloping countries could not exert influence.  The European 
Union was proposing l egally binding principles , which would be enforceable  through the WTO 
dispute settlement system , in respect of matters of such great commercial importance as e -
commerce and serv ices. Both these circumstances, namely the launch of negotiations on a 
commercially relevant topic and the legally binding character of the proposed rules, would help the 
WTO recover prominence.  The multilateral setting was where developing countries could  best 
defend their interests.  The WTO was strengthened when it effectively addressed topics that were 
commercially relevant, and this brought opportunities to developing countries, which were the 
principal beneficiaries of a rules -based multilateral tradin g system.  
1.14.   The representative of Turkey  thought that, in general, the best way forward was to discuss 
all issues relevant to trade in services as a package.  Creating the necessary balance across the 
membership would be required for achieving any tangible ou tcome at MC11 and beyond. 
Preliminarily, she b elieve d that the pro posal would help to increase c onsumer confidence  in e-
commerce.  However , she wished to obtain cert ain clarifications in order  to assess the compatibility 
of the proposed disciplines with her country's domestic legal system.  With respect to definitions , 
she thought that  it might be difficult to agree on electronic trust services given the differences in 
regulation s across the membership . For example, services relating to electronic seals or website 
authentication d id not exist in Turkish legislation.  She hoped that the proponents c ould further 
elaborate on the necessity of covering electronic trust services in addition to electronic 
authentications.  Regarding unsolicited commercial electronic m essages, paragraph 4 was limited to 
messages sent to an electronic mail address. Paragraph 5 referred to paragraph  4 and was 
therefore also limited to email messages. It was no t clear t o what extent the application of 
provisions in paragraphs 3 and 6 was b roader, as these included messages sent through other 
telecommunication services.  She wondered whether the definition of unsolicited commercial 
message s should be modified so as to cover only e-mails. She asked about the objective of 
paragraph 5, which ref erred to a right of recourse.  To which authorities would the recourse be 
brought?  Those where the unsolicited commercial email s were sent or those where they were 
received?  Greater clarity was needed on whether the provision involved cross -border recourse.  
She also wondered about the scope of the proposed obligations on consumer protection, especially 
with respect to cross-border activit ies. 
1.15.   The representative of Pakistan  said that his country had already enacted relevant 
regulations on electronic transacti ons and cybercrime, and considered that the elements identified 
in the proposal were a good starting point for further discussions, as they were not contentious.  He 
asked the delegation of the European Union to further elaborate on paragraph 9 of the propo sed 
text. What particular category of transactions would require meeting certain types of standards for 
electronic authentication?  He believed that technical assistance and capacity building for 
developing countries and LDCs w ere of prime importance.  The regulatory gap between developing 
and developed countries  was large . Relevant provisions in that regard should be included in this 
proposal.  It was critical to focus on the d evelopment dimension of e -commerce.  His delegation was 
interested in future outcome s on e-commerce in the WTO that adequate ly consider ed development 
needs , and was prepared to engage positively in negotiations.  
1.16.   The representative of Thailand  sought  clarification from the European Union with respect to 
the scope of the proposal.  The objec tive seemed to be to facilitat e online trade, but the 
presentation from the delegation indicated that the focus was on the service sector.  Online trade 
involved both goods and services.  She wondered whether, for example, e -contracts for goods 
would be cove red. E-contracts seemed relevant for many activities, even beyond goods and 
services . She hoped that the delegation of the European Union could clarify.  
1.17.   The representative of Singapore  noted that some of the elements of the proposal, such as 
electronic aut hentication and consumer protection, had previously been raised as issues of interest 
in the Regular Session of the Council for Trade in Services.  He welcomed the opportunity for 
further concrete discussions.  He appreciated that the European Union had inse rted a placeholder in 
relation to the participation of developing countries.  Development was at the core of the WTO and 
adequate provisions on this aspect should be incorporated in any final outcome.  He looked forward 
to hearing more specific ideas from ot her delegations on how technical assistance and flexibility 
should be addressed in the text.  He noted that the proposal contained separate headers for TN/S/M/4 7 
 
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  electronic authentication and electronic con tracts, and also that it introduced  the notion of trust 
services. These distinction s were not clear to his delegation and he asked the delegation of the 
European Union to further elaborate.  Lastly, paragraph 3 on spam used the terms "shall" and he 
thought that this might make the obligation difficult to implement.  Aspirational language might be 
more appropriate.  
1.18.    The representative of Hong Kong, China  said that his delegation had long been supportive 
of advancing discussion s on e-commerce in WTO.  He was supportive of initiatives that could help 
create a reliable bus iness environment , especially  for SMEs.  The topics covered by the proposal 
were relevant for the creation of  an environment conducive to e-commerce.  He therefore generally 
welcome d the proposal.  His delegation wished to enquire about a particular point.  Paragraph 5.1 of 
the communication said that "pursuant to GATS Article XVIII, Members could agree upon a series 
of legally binding principles that would form the basis for regulatory frameworks on those issues".  
According to GATS Article XVIII, such commitme nts sh ould be inscribed in Member s' schedule s. 
What was the European Union's intention regarding the form of the proposed legally binding 
principles ? How would they interact with schedules of commitments?  For example, w ould this be 
similar to the case of the Reference Paper on basic t elecommunications , which was legally binding 
for those Members that had taken commitments to that effect, either in relation to the whole 
document or with modifications ? Or would such disciplines rather be mandatory for all Mem bers?  
The delegation of the European Union had mentioned that the proposal would be applicable to all 
services.  Did this mean that Members could not limit application to committed sectors?   
1.19.    The representative of New Zealand  thought that the proposal usefu lly sought to identify 
practical areas where the WTO c ould support the growth and dev elopment of electronic commerce . 
She agreed that it was important to update multilateral rules to modern trading realities . She also 
shared the objective of promoting appropriate regulatory environment s to facilitate the use and 
uptake of the new digital  technologies and services , as the y had an impact on b usinesses, 
including SMEs, as well as consumers . Such regulatory environments in volved the domestic legal 
frameworks th at facilitate d the use of electronic trade, such as electronic authentication and e -
signatures , as well as those that facilitated paperless trading.  Importantly, such regulatory 
environments also included robust provisions for the protection of consumers a nd their personal 
information , equivalent in effect to rules applying in the non -digital environment.  In that context, 
the membership should examine the potential ways in which the WTO could make a difference in 
this area, including by exploring the possib ility of additional commitments to address relevant 
regulatory issues and see ing what might be possible for MC11 . She looked forward to further 
discussions, with a view to identifying a practical way forward  that might  be extended to 
encompass the more cro ss-cutting dimensions of electronic trade over time.  
1.20.   The representative of the Republic of Korea  consider ed that  the proposal was a solid 
building block for an e -commerce outcome at MC11.  He felt that  the content of the proposal  could 
be improved and clari fied in some areas . In particular, he hoped that the European Union could 
spell out the scope of the proposal and, also, provide Members with further explanations o f terms 
used, such as electronic trust services and electronic registered delivery services,  which might not 
be familiar to many delegations.  He concurred that it was important to address development 
considerations in the proposal and was pleased that the European Union invited further 
contributions on this aspect.  He hoped that text c ould soon b e inserted in th at regard . 
1.21.    The representative of Australia  welcomed concrete ideas on what Members could do in 
order to ensure that the benefits of e -commerce were captured by all.  Her delegation encouraged 
discussions on this issue because of its relevan ce for international trade and the interest that it 
generated for many Members.  The WTO should remain  responsive in order to ensure i ts ongoing 
relevance in the rapidly evolving global economy.  She was able to offer preliminary views on the 
European Union proposal.  Generally, her delegation agree d that it was important to create and 
maintain an enabling environment to facilitate such transactions.  Electronic authentication and e -
signatures facilitate d both domestic and cross -border e -commerce  by ensuring th e integrity of 
online transactions, as well a s by reducing transaction costs . In Australia, domestic legislation 
provide d certainty for electronic transactions and allow ed e-commerce to operate on the same 
basis as paper -based commerce.  Legislation was technologically neutral and provide d flexibility to 
determine the signature technology that was appropriate in light of parties' needs.  Australian 
legislation was based on the UNCITRAL Model L aw on Electronic Commerce  and was consistent 
with the UN Convention  on the Use of Electronic Communications in International Contracts.  
Australia ha d also made various commitments under its regional t rade agreements with respect to TN/S/M/4 7 
 
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  electronic transactions, electronic authentication and electronic signatures.  Commitments involved, 
for example : - providing assurance that the legal validity of a signature was not denied solely o n 
the basis that the signature wa s in electronic form; - providing that a transaction including a 
contract was not denied legal effect, validity or en forceability solely on the grounds that it was in 
the form of an electronic communication;  - allowing parties to an electronic transaction to mutually 
determine appropriate authentication methods for a transaction , and ; - allowing parties to 
establish befo re judicial or administrative authorities that their transaction complie d with legal 
requirements relating to authentication.  She noted that the European Union proposal refer red to 
the broad concept of "electronic trust services ". She wished to u nderstand how these terms 
differed from electronic authentication and e -signatures.  Did some elements of electronic trust 
services go beyond the UNCITRAL model laws and the UN Convention?  
1.22.   She recognise d that consumer protection  was also important in building trust  in relation to 
e-commerce. Australia' s domestic regime provide d protection for consumers, including against 
fraudulent and deceptive conduct.  She noted that the proposal refer red to other measures that 
contribute d to consumer trust , and asked for further i nformation.  Regarding spam, she said that 
regulatory frameworks that protect ed consumers against unsolicited commercial electronic 
messages were also important to build consumer trust in the digital environment.  Australia ha d 
domestic laws in place that re quired either the recipient's consent to receive su ch messages, or 
that the sender  provide a means to prevent the receipt of spam.  Australia also provide d avenues 
for recourse against suppliers of spam if these requirements were not met.  Regarding el ectron ic 
contracts , she wished to hear from the European Union about the types of measures that Members 
should consider in order to facilitate the conclusion of contracts by electronic means and how these 
measures went beyond measures related to e-authentication  and e-signatures . Finally , she  
emphasise d the importan ce of  consider ing the development dimension  and welcomed ideas on 
how this might best be achieved.  
1.23.   The representative of Norway  welcomed  the communication from the European Union and 
underscored the im portance of e nhancing trust in electronic transactions and strengthening the 
conditions for cross -border e -commerce . This c ould be obtained by efficient regulatory frameworks 
on consumer protection, personal data protection, electronic authentication , and electronic 
signatures.  In general, she could agree with the main elements of the proposed text, but wished to 
underline a few aspects.  Consumer protection was of particular importance to her delegation.  She 
was generally supportive of the definition of uns olicited commercial electronic messages , but 
thought that m essages through other electronic means should also be included in order to provide 
a stronger protection against spam.  Regarding electronic authentication and trust services, she 
could support most  of the text. The definition of electronic trust services was still being studied in 
capital.  The development dimension  needed to be further considered . This w ould be an important 
aspect of Members ' discussions of the proposal.  E-commerce offer ed great opp ortunities , but also 
involved challenges that could hinder  progress.  She welcomed views from developing Members on 
the main challenges faced . It was necessary to look i nto ways to help developing M embers attain 
capacity to participate in e -commerce.  Creati ng an enabling environment was one element that 
could contribute to this.  
1.24.   The representative of the Russian Federation  expressed interest in further exploring issues 
relating to consumer protection, spam , electronic authentication, e -signatures and e -contracts. 
Since these issues related to e-commerce, she believe d that discussion s should not be limited to 
services only, as the same issues could also be relevant for goods and intellectual property.  
E-commerce discussions should primarily be held in a holis tic manner.  Narrowing the work to  
specific issues at this stage might not provide a clear picture of the topic . 
1.25.   The representative of Paraguay  said that e -signatures w ere of particular interest to his 
delegation  because they could help facilitate trade by guaranteeing the authenticity, integrity, and 
privacy of cross -border transactions done over the Internet . His delegation, along with Brazil and 
Argentina, had put forward a communication (JOB/GC/115) for consideration under the Work 
Programme on E-commerc e that provided information on Merco sur's Resolution GMC 37/05 on 
e-signatures.  Another interesting aspect of the proposal concerned the important role of SMEs , 
since they would benefit from the proposed enabling environment.  At the last meeting of the 
General Council, various Members, including Paraguay, launched an informal process to discuss 
measures to help micro, small  and medium -sized enterprises  of developing countries increase their 
participation in global trade.  The proposal from the European Union  could constitute a concrete 
initiative in that context.  He also appreciated the propos ed provisions in relation to cooperation TN/S/M/4 7 
 
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  between national consumer protection agencies. The entity responsible for the application of 
consumer protection policies in Par aguay had been  created in 2013 and further cooperation with 
similar entities abroad would improve understand ing of best practices on these matters.  Regarding 
the specific  disciplines proposed by the European Union, he wished to obtain more information on 
the types of measures that would need to be taken by Members, and on the legal sources used for 
definitions.  
1.26.   The representative of Uganda  delivered a statement on behalf of the LDC Group . He 
believed that the European Union was bringing to the Special Sessi on a sub -set of the issues 
mentioned in the communication that it had previously submitted to the General Council  
(JOB/GC/97/Rev.3 ). The 1998 Work Program on E-commerce ha d no negotiating mandate.  
Members were required to  examine and report on all trade -related issues relating to global 
electronic commerce , taking into account the economic, financial and development needs of 
developing countries.  In Nairobi, Ministers had agreed  "to continue the work under the Work 
Programme  (…) based on the existing mandat e and guidelines and on the basis of proposals 
submitted by Members in the relevant WTO bodies as set out in Paragraphs 2 – 5 of the Work 
Programme  (…). In addition, the General Council shall take up consideration of any trade related 
issue of a cross -cutting nature ". In his view, the European Union was forum shopping and intended 
to circumvent  the requirement for a  specific negotiating mandate on e -commerce.  
1.27.   The representative considered that the Special Session was not the right  forum for 
discussion s on e-commerce.  Concurrence from all Members on a mandate to negotiate would first 
be required.  The Special Session derive d its instruction s from the Guidelines and Procedures for 
the Negotiations on Trade in Services  (S/L/93 ). These guidelines clearly set out the objectives , 
scope , modalities , and venue for negotiations, which d id not include the issues  raised by the 
European Union . It could therefore be argued that the communication from the European Union 
had been submitted to the Special Session in  error a nd that it had no authority to preside over 
such issues , except if expressly granted by  Members.  Article XVIII did not oblige Memb ers to enter 
into negotiations.  The article said that Members might negotiate commitments , which suggested 
that Members would ha ve to collectively decide whether to negotiate.  Instances where there 
should be further negotiations  were written into the relevant provisions of the GATS, such as in 
Article VI:4 , Article X , Article XIII , and Article XV.  The Marrakesh  Agreement clearly in dicate d what 
belonged in the WTO and what did not.  Article III:2 provided for a two -part test  in that regard : the 
issue had to concern Members' mu ltilateral trade relations and  instructions from the Ministerial 
Conference were required.  This test was not m et in the case of the proposal from the European 
Union. The issues brought forward by the European Union concerned  Internet governance, an 
issue that was addre ssed in such other fora as the International Telecommunications Union and 
the U nited Nation 's Com mittee on Science and Technology for Development.  
1.28.   In terms of process, the Work Programme on e -commerce provided that discussions take 
place in relevant the regular bodies, and that these, once discussions had matured , report to the 
General Council.  Did th e European Union believe that these issues had been sufficiently discussed 
within regular bodies, and that sufficient information  had been provided  to bridge the knowledge 
and digital divide?  Had the European Union addressed the economic rationale of its proposal in the 
regular bodies?  Had the membership  addressed the infrastructural, regulatory and institutional 
challenges that the LDCs continue d to face in building their e -commerce readiness?  Did the 
European Union believe that the LDCs ha d met the triple  test of access , affordability  and 
availability in order to be able to substantively engage i n, and benefit from, e -commerce?  He 
believed that the objective of the proponents was to  avoid the requirement to seek a mandate to 
negotiate on e-commerce , and to  create a backdoor for disciplining e -commerce without following 
due process.  In order to allow focused discussion o f Members' proposals in regular bodies, the 
proponents should narrow their submissions to issues specific to each particular body and, if th at 
was not possible, focus on the development aspects of the work programme, with a view to 
considering improved access to infrastructure , transfer of technology , the movement of natural 
persons , and the use of information technology in the integration of developing countries.  These 
were issues at the heart of the digital divide that had to be resolved in order to build e -commerce 
readiness.  He did not thin k that discussing issues without mandate w as a good use of time.  
1.29.   The representative of Mexico  believed  that the proposal was relevant and that it had been 
introduced at the appropriate juncture.  Her delegation had always supported the strengthening of 
the multilateral system and, accordingly, welcomed negotiating initiatives, especially those in 
relation t o the establishment of rules to boost e -commerce.  In a preliminary manner, she TN/S/M/4 7 
 
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  considered that it would be useful to better understand the meaning that the European Union 
attached to the term "trust services" and the extent to which it differed from  the co ncept of e-
signatures.  She would seek to discuss additional  questions bilaterally an d wanted to constructively 
engage in f uture  discussions in the Special Session.   
1.30.   The representative of South Africa  spoke on behalf of the African Group . She first recalled  
Article II: 1 of the Marrakesh Agreement on the scope of the WTO,  and noted that t he Council for 
Trade in Services in Special Session was the formal structure  for the services negotiations.  The 
mandate under GATS Article XIX had been operationalized throug h the adoption of the Guidelines 
and Procedures for the Negotiations on Trade in Services  (S/L/93) . The Special Session was 
therefore mandated to achieve the objectives of the GATS, as stipulated in the Preamble, Article IV 
and Article XIX of that Agreemen t. In addition to the market access negotiations, the Guidelines, 
read together with the 2005 Hong Kong Ministerial Declaration , were specific in terms of the 
negotiations on rule -making , as reflected in  Articles VI:4, X, XIII and XV . These four areas of 
negotiations were part of the built -in GATS agenda . The four elements covered in the European 
Union proposal were not mandated under the Guidelines.  It was also too simplistic to consider 
such issues as relating to mode 1 or to online trade in services.  The four areas identified were not 
about t rade in services, but rather related to the regulation of the Internet.  She wondered  why 
some Members wanted the WTO to compete with other international organizations for policy 
authority over these issues . All elemen ts of the proposal ha d already been addressed  by the U nited 
Nation's Committee on Science and Technology for Development.  In addition, in 2015, the UN 
General Assembly had adopted the Guidelines for Consumer Protection, which include d a section 
on e-commer ce.  
1.31.   While the European Union present ed the proposal as promoting consumer protection and 
enhancing consumer trust, the GATS d id not address how Members should protect consumers.  The 
general exceptions under Article XIV provided  that the GATS should not st and in the way of the 
prevention of deceptive and fraudulent practices.  The proposal delve d into the risky terrain of 
setting minimum standards on what Members ha d to do.  The WTO ha d always approached trade 
liberalization from the perspective of the produc er. Regulatory interests of consumer s did not 
feature  in multilateral trade disciplines and ha d been under the purview of national legislation and 
regulation.  The Guidelines for the Scheduling of Specific Commitments  (S/L/92 ) said: "whatever 
the mode of su pply, obligations and commitments under the Agreement relate directly to the 
treatment of services and service suppliers . They only relate to service consumers  insofar as 
services or service suppliers of other Members are affected ". For that reason, s he thought that  the 
rules proposed by the European Union w ere incompatible with the GATS .  
1.32.   She also perceived the proposal as a first step towards a wider negotiation , against the 
position taken by the majority of the membership that it was premature to enter i nto multilateral 
rule-making.  The proposal was an attempt to circumvent the absence of mandate to negotiate 
multilateral rules on e -commerce.  This proposal to the Special Session had been made under the 
misguided assumption that Members had completed discu ssions under the Work Programme.  
Further, she was concerned that the European Union w as proposing legally binding principles on e -
commerce and Internet governance through GATS Article XVIII  when it had not yet elaborated on 
their interests in these four ar eas during the discussions under the Work Programme on Electronic 
Commerce, where they ha d put forward a proposal.  Did the European Union consider  that the 
Work Programme had fulfilled its purpose?  The African Group ha d consistently pointed out the 
extreme  levels of digital inequality  around the world.  Certain segments of the e-commerce market 
were oligopolistic and this w ould be exacerbated by multilateral rules on e -commerce and Internet 
governance.  In the context of the Work Programme, the African Group was interested in 
exami ning issues that i mpeded Africa from engaging in e -commerce.  This relate d to the scope and 
depth of the digital divide, the fact that more than half of the world 's population was not using the 
Internet, and low levels of broadband penetration in Africa and the LDCs.  In view of Africa's 
reality , an entirely different framework and approach needed to be considered if digital trade  was 
to help achiev e inclusive growth and development.  Efforts should focus on build ing the required 
infrast ructure, as well as t he technological and skill capabilities that would foster wider  and more 
equitable participation.  
1.33.   She reiterated that c onsumer protection had its own separate body of law, distinct from 
trade law  and from the WTO.  The other aspects of the proposal were not about trade in services as 
defined in the GATS , but address ed issues of Internet governance.  Any issue that was brought for 
Members ' consideration had to  be consistent with existing mandates , and t here was no mandate in TN/S/M/4 7 
 
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  relation to th e European Union's proposal . The proposal did not have a basis for further 
consideration because it did not correspond to the scope of the WTO, the Special Session's 
mandate, the application of Article XVIII, the structure and substance of the GATS, or tra de in 
services.  She thought the proposal was an attempt to bypass the need for mandates and to open 
negotiations on e -commerce more broadly.  
1.34.    The representative of the Plurinational State of Bolivia  expressed concerns about the 
proposal.  A number of the t opics mentioned did not correspond to the scope of the GATS or the 
WTO, but rather related to the regulation of the Internet.  Consumer protection  was addressed in 
the UN Committee on Science and Technology for Development.  The issue was  only mentioned in 
GATS Article XIV as an exception.  Similarly, s pam pertained to Internet governance, and the 
International Telecommunications Union had the appropriate mandate to address th is topic . The 
Special Session did not have a mandate to negotiate on the  matters  proposed by the European 
Union . Not respecting mandates damage d the legitimacy and integrity of the multilateral trading 
system.  GATS Article XV III did not obligate Members to negotiate.  Paragraph 34 of the Nairobi 
Ministerial Declaration  provided that the dec ision to initia te negotiations had to be taken by 
consensus.  The WTO was not a forum to address an y topic of interest to a Member . The digital 
economy was important to all, and for this reason the international community was address ing 
related matters in o rganizations that possessed a more specific mandate, such as the ITU, the UN 
Committee on Science and Technology for Development, or UNCITRAL.  
1.35.   The representative of Nigeria  associated his delegation with the statement made on behalf 
of the African Group, b ut recalled that his delegation was part of the Friends of E -commerce for 
Development . He noted that the recent UNCTAD E -commerce Week had touched upon a number of 
issues that were covered by the proposal.  In particular, the importance of consumer protecti on for 
e-commerce had been stressed, as was the relevance of strengthening institutional capacity.  
E-commerce brought potential benefits, but also challenges.  Challenges related, for example, to 
the protection of consumers, protection from cybercrime and d ata breaches, unsafe products, 
unfair business practices, inadequate dispute resolution systems for online activities, breaches of 
consumer privacy, and lack of coordinated action among governments.  Consumer trust was 
paramount in achieving the inclusive a nd sustainable development of e -commerce.  All 
stakeh olders had to work together to e nsure that no one was left behind.  According to a recent 
report, 49% of users that had discontinued their online shopping activities attributed this to a lack 
of trust, sug gesting that this  was hindering further development of the digital economy.  The 
challenges could be addressed through adequate consumer and data protection frameworks.  The 
report also indicated that the top concern among users worried about privacy  was cyb ercrime . He 
believed that e -commerce was an importan t force in global trade and that it had significant  
development potential.  The key question was whether and how the proposal from the European 
Union helped create an enabling environment to facilitate ele ctronic transactions.  He noted with 
encouragement that the European Union was prepared to address the challenges faced by  
developing countries, particularly the need to reinforce regulatory capacity.  Effective regulations 
on consumer protection and cybercr ime were necessary because all sectors of the economy were 
using information and communication technologies in an interconnected environment.  There was 
no other option but to take the critical steps needed to ensure that technology for online 
transactions remain ed safe, secure, and functional.  The key challenge was how to leverage the 
opportunity offered by the digital economy.  In that regard, the development component of the 
proposal would prove critical.  
1.36.   The representative of Brazil  noted that e -commerce  was both an important and sensitive 
issue.  The dedicated discussion last October highlighted sensitivities, while the recent Ministerial 
Declaration from the Friends of E -Commerce for Development was a testimony to the importance 
attached to the topic.  E-commerce was a n issue that touche d upon many different areas . The 
Work Programme had al ready recogni zed at least four such areas, namely goods, intellectual 
property, services , and development.  The Work Programme was of a non -negotiating nature.  This 
had t o be taken into c onsideration when analy sing the contribution of the European Union and 
determining whether that proposal was helping to identify a possible outcome for MC11 or not.  He 
was concerned that the proposal did not represent the best way to move forward.  In preparing for 
MC11, delegations had to be careful about perception.  Singling out four or five  technical issues in 
relation to e-commerce  gave the impression that this represented the outcome that the European 
Union wanted for the whole issue of  e-commerce.  A broad er view of what was doable on 
e-commerce seemed preferable.  He noted that, on another e -commerce aspect, the European 
Union was seeking a permanent moratoriu m on electronic transmissions.  The permanent TN/S/M/4 7 
 
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  moratorium needed no further actio n from the E uropean Union  domestically, in contrast to the 
situation of other Members.  This approach gave the impression that the moratorium and the 
proposal from the European Union were the only outcomes for e -commerce.  Further, nothing was 
said about pro cess or about how e -commerce discussions would move ahead.  Also, i t was not clear 
whether the development section of the proposal would relate to special and differential treatment 
or more generally to ways  of address ing the digital divide.  This was a key aspect in assessing what 
might be possible for MC11.   
1.37.   Another concern was that the European Union, along with co -sponsors, had earlier raised 
the technical issues covered by its proposal as part of the discussion in the Work Programme.  This 
gave the impres sion  ̶ thought it was  not necessarily the intention  ̶ that the European Union had 
put forward a list of topics that were recognized as not being under negotiation, and then 
subsequently us ed a different mandate to seek rule -making.  The representative also considered 
that it was difficult to see th e topics covered by the proposal as being confined to the services 
realm.  For instance, it was hard to say that electronic contracts were relevant for services, but not 
for goods or other area s. He was not convin ced that those horizontal issues should be limited to 
services and to the GATS.  Regarding the text proposal on e -signatures and consumer protection, 
his delegation would require much more detail ed discussion s on these two topics.  With respect to  
the issue of mandate, he was not convinced that Article XVIII constituted a mandate in itself.  It 
said that Members m ight negotiate.  Accordingly, Members were  first required to decide to 
negotiate.  Should Members decide to take commitments on issues not relating to national 
treatment or market access, Article XVIII provided that these could be inserted as additional 
commitments.  In contrast, the mandates in Article XIX:1, VI:4, X, XIII, and XV were  of a different  
nature , as they provided that Members "shall" negotiat e. In conclusion, he stated that e -commerce 
was important to his delegation and that he was ready to work to identify a doable outcome on 
this topic  at MC11 . However, he was not convinced that the approach taken by the proponents 
would be helpful in that r egard.  
1.38.   The representative of Cuba had a number of concerns about the proposal.  The 
communication from the European Union was a negotiating proposal on e -commerce, which was a 
new issue on which there was no consensus to negotiate . The conditions laid out i n paragraph 34 
of the Nairobi Ministerial Declaration would first have to be satisfied  in order to negotiate . The 
proposal also went against the 1998 Work P rogramme, wh ose mandate was exploratory in nature . 
She did not think that the themes proposed pertai ned to the WTO.  These matters had been taken 
up in other international organizations that were better suited to host such discussions.  She did 
not see the necessity of bringing topics that had been addressed elsewhere to be renegotiated in 
the WTO context.  She was concerned by the proposed use of Article XVIII as a conduit for 
discussion of the proposal in the Special Session and did not see that the proposal was compatible 
with the Guidelines for Negotiations.  Accordingly, the Special Session was not the a dequate body 
to consider this proposal.   
1.39.   The representative of China  said that his delegation was interested in the issues highlighted 
in the proposal.  He sought clarification in relation to some specific elements.  First, e -commerce 
was a cross -cutting iss ue. For instance, consumer protection, spam , and electronic contracts were 
broad topics that did not relate solely to trade in services.  How did the European Union plan to 
address these and other e -commerce aspects, which touch ed on trade in goods and inte llectu al 
property?  Second, the proposal contain ed a footnote that identifie d certain types of contracts to 
which paragraph 10 would not apply.  However, no such exception had been foreseen for 
paragraphs 7, 8 and 9 , despite the ir similarities with paragraph  10. He asked about the rationale 
for such an approach.  Third, th e footnote identifie d certain situations where government s might 
not recognize electronic contracts.  Given that domestic  legal frameworks m ight vary greatly a cross 
Members, his delegation w as not sure whether such a negative -list approach could accommodate  
the different circumstances  that would arise across the membership . He asked whether the 
European Union could consider improving or modifying the proposed language.  Finally, concepts 
like "electronic trust services " did not exist in many Memb ers' domestic legal framework s, which 
would prevent  them from under taking the relevant obligations.  What options or alternatives would 
be available in such circumstances ?  
1.40.   The representative of Colombia  emphasized that his country was a developing and growing 
economy that increasingly focused on electronic means in order to conduct domestic and 
international transactions.  Consequently , Colombia had become  a proponent on this topic, as it 
was convinced that  e-commerce was a tool that boosted development by facilitating the TN/S/M/4 7 
 
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  internationalization of enterprises.  This principally bene fitted micro, small, and medium -sized 
enterprises by reduc ing export costs.  His delegation therefore supported the discussion fostered by  
the proposal from the European Union.  He thought that the four themes covered were 
fundamental to any enterprise, including those that were only initiating a process of technological 
adaptation.  The obligations contained in t he proposal would promo te improved business climates 
for all.  His country had included many of the proposed elements in domestic legislation, and was 
endeavouring to ensure that any new rules affecting  enterprises were technology neutral.  These 
issues w ere particularly relevant in the context of services.  He shared the view that Article XVIII 
provided sufficient basis to allow for a substantive discu ssion.  
1.41.   The representative of Canada  saw value in trade disciplines addressing electronic 
authentication and consumer protection, in cluding unsolicited electronic messages.  Regarding 
definitions, he suggest ed simplifying the proposal by including a single definition of electronic 
authentication.  He did not see the need to distinguish electronic trust services.  With respect to 
paragraph  1, he asked  about the types of measures that the European Union sought to capture 
beyond those that protect ed consumers from fraudulent and  deceptive commercial practices.  He 
also thought that the European Union should explore alternative wording for para graph 3.  As 
drafted, such obligation would be difficult for Members to meet.  Finally, he asked why footnote 1 
would be necessary.   
1.42.   The representative of India aimed to better  understand the objective, scope and 
implications of the proposal.  He noted that t he term s "online transactions" w ere not defined in the 
proposal.  The document also referred to "electronic commerce" and "trade by electronic means ". 
He thought that it would be useful for the European Union to clarify th ose terms. In particular, he 
asked whether the scope of t he proposal was equivalent to  that of mode 1 transactions unde r 
GATS.  Further, d id the proposed text pertain only to services involved in electronic commerce, or 
to the purchase of services through electronic mode ? Did the proposal re late to goods delivered 
pursuant to an online transaction?  If the proposal pertain ed to the delivery of goods, what was the 
mandate of the Special Session to discuss this?  Was the proposal similar in scope to " electronic 
transmission s", as used in the cont ext of the customs duty moratorium?  He said that the Work 
Programme recognize d that e-commerce had several dimensions , which relate d, for instance, to 
GATT, GATS, and TRIPs . In that context, what was the purpose of raising the concept of online 
transaction s only in this Special Session ?  
1.43.    The representative noted that the European Union envisaged that its proposal could be 
implemented through GATS Article XVIII.  In that regard, was the intention that these additional 
commitments be inscribed in schedules in  relation to specifi c sectors where commitments  on 
mode 1 had been under taken?  Or would such commitments apply to all sectors with commitments 
on mode 1?  Would the legal effect then be limited to services supplied in those committed sector s? 
Or did the European Union also  envisage market access for mode 1 in sectors not committed in 
Member s' schedule s? The four elements highlighted in the proposal were important and useful . 
However , since the proposal use d mandatory language , would this not allow Member s to question 
the adequacy of other Member s' domestic law s, and have recourse to the dispute settlement 
system ? While  many countries had adopted laws covering elements figuring in the proposal, 
domestic legal frameworks might not be fully compliant with all th e proposed obligations.  For 
instance, regarding unsolicited commercial electronic messages,  India had laws that addresse d 
only SMSs sent throu gh telecommunication means, but did not have any overarching  framework 
that regulated the consent of c onsumers in relation to "commercial electronic messages ". Further, 
the p ropos ed definition of " unsolicited commercial electronic messages " appeared to cover aspects 
related to social media messages as well.  How d id the European Union regulate unsolicited 
commercial el ectronic messages in social media platforms?  Would it not be too onerous and 
burdensome to require regulatory frameworks on this aspect?  In concluding, he noted that the 
European Union was willing to add more elements and take into account the views of Members. In 
that regard, his delegation saw value in  measures to strengthen the supply of services through 
mode 1.   
1.44.   The representative of Swaziland  shared the views expressed by the African Group.  He did 
not think that Article XVIII provided a mandate to nego tiate. The article said that Members might 
negotiate commitments, not disciplines.  This implied that disciplines would have to be negotiated 
elsewhere, not in the GATS.  He thought that Article XVIII had been referred to erroneously in the 
proposal.  He also  asked whether the intention was that the disciplines apply horizontally or 
sectorally.  If the latter , which sectors would be concerned?  TN/S/M/4 7 
 
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  1.45.   The representative of Zimbabwe  wished to provide support  for the interventions of South 
Africa, Uganda, Bolivia, Cuba, India and Swaziland.  She noted with concern that the European 
Union had reorganised part of its earlier  proposal to make it appropriate for discussion in th e 
Special Session . The proposal was on e -commerce, which was a new issue that ha d no mandate 
for neg otiations under GATS Article XVIII . Consensus would be required to negotiate on this issue.  
However, the European Union could table its proposal in the regular bodies for examination in the 
context of the W ork Programme on E-commerce.  She thought that t he proposal went beyond the 
scope of WTO work , as it concerned In ternet governance issues that should be handled by such 
relevant international organizations as the ITU.  The representative of  the Bolivian Republic of 
Venezuela  supported the views expressed by  such delegations as South Africa, Uganda, Bolivia, 
Zimbabwe and Cuba, which had stressed that the Special Session did not have a mandate to 
consider negotiating proposals on the topics suggested by the European Union, especially 
considering the Negotiatin g Guidelines (S/L/93) and the text of GATS Article XVIII.  He was 
concerned that this went against the Work Programme on E -commerce.   
1.46.   The representative of Chile indicated that his delegation generally supported the proposal 
because it was succinct and addressed topics that were of significant relevan ce for trade, such as 
the need to increase the confidence of parties involved in e -commerce.  He did not think that these 
topics were controversial.  The proposed text focused on  principles and objectives, and was  flexible.  
It was also open to the inclusion of development aspects, which in his view was necessary.  It was 
fundamental that the WTO maintain its relevance and, accordingly, that key topics in the current 
trading system be discussed in the organization.  One of these topics was e -commerce.  He thought 
that the proposal provided a good basis for discussions in the Special Session and for obtaining 
concrete results at MC11.  Finally, given that some delegations had raised issues in relation to the 
relevance of the existing services negotiating mandates, he asked the Secretariat to provide 
information and background in that regard.  
1.47.   The representative of Peru indicated that his delegation's preliminary assessment of the 
proposal was favourable.  He welcomed the Eu ropean Union's openness to consider suggestions for 
additional text from Members.  The representative underscored the relevance of considering this 
proposal in the Special Session  and emphasized his delegation's motivation to pursu e further 
discussions in order to achieve an outcome at MC11 that promoted the value of the multilateral 
system.  Procedural matters should not impede analysis of the proposal, including its technical 
aspects and its proposed contribution to  develo pment . 
1.48.   The representative of Camero on noted that the proposal seemed to have been inspired by 
the EU Directive on Electronic Commerce (2000/31/CE ), which created an environment without 
internal barriers where the free flow of goods and services, as well as the freedom of 
establishment , was ensured.  His delegation shared the views expressed on behalf of the African 
Group.  E-commerce was a new issue in the WTO.  The Nairobi Ministerial Declaration had laid out 
the modalities for treatment of such new issues.  E-commerce was being discussed in th e context 
of the Work Programme established in 1998.  The proposal presented today raised a number of 
legal issues in that context, as explained by the African and LDC groups.  He also shared the 
concerns expressed by the delegations  of Bolivia, Brazil, Cuba , Venezuela, and Zimbabwe . 
Paragraph 34 of the Nairobi Ministerial Declaration specified that the launch of negotiations on new 
issues need ed to be agreed by all Members.  Further, w hich modalities and procedures might 
structure negotiation s, should they ta ke place?  While his delegation was interested in e -commerce, 
he would not engage without greater clarity.  Rules and mandates had to be followed.  Agreed 
procedures were also necessary for any negotiation.  
1.49.   The representative of Japan  welcome d the concrete te xt proposal by the European Union, as 
this allowed in-depth discussion s. While most of the elements appearing in the proposal did not 
seem new, he was not familiar with several ideas.  For instance, he was unfamiliar with the concept 
of "trust services".  Greater clarity would be required before further discussion  of the proposed 
obligations.  He thought that more fundamental elements should be included in any future 
disciplines in this area, namely the free flow of  data and data localization requirement s. From a 
broader perspective, t he European Union's approach , based on Article XVIII, was  interesting.  In 
terms of mandate, careful study of similar cases, such as the Reference Paper  on basic 
telecommunication services, could yield useful guidance.  He hoped tha t a fact -based discussion 
would take place with respect to the issues raised about mandate.  TN/S/M/4 7 
 
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  1.50.   The representative of Egypt  believed that the proposed text had strong mandatory 
language.  The proposal indicated that it aimed to contribute to better digital inte gration, but, 
based on findings of the World Bank, UNCTAD and ITU, such in tegration required a number of 
conditions to be in place.  Countries needed to have strong foundations for connectivity  ̶ as 
reflected in the telecommunication infrastructure, an open business environment, and developed 
human resources –, market competitiveness, and an effective regulatory system, such as in 
relation to privacy and data protection, consumer protection, and e-payments.  How could the 
European Union convince countries that lacked physical adaptation to negotiate multilateral rules 
on digital adaptation?  With regard to consumer protection, his delegation wished to know the 
problems that the European Union faced in foreign markets in relation to online transactions.  He 
noted that  a recent Eurostat survey show ed that only 8 % of enterprises in the European Union 
made e -sales to other EU countries , and almost none made sales outside the European Union.  
Regarding spa m, the I TU had indicated that this issue was a bigger problem in developing 
countries than in wealthier countries, where anti -spam mechanisms were more robust.  Many 
developing countries d id not yet have anti -spam laws . And those that d id often had no  resou rces 
for e nforce ment. Meanwhile, the effects of spam were typically more costly in developing 
countries.  Developing countries often point ed to the fact that most spam still emanated f rom 
developed  economies.  Why focus on enhancing capacities if the origina tors of spam were outside 
their jurisdictions?  Had the European Union examined all  avenues to  combat spam before 
addressing it at the multilateral level? The developing countries were at a comparative 
disadvantage in fighting spam.  The answer for developin g countries did not rest in simply copy ing 
anti-spam laws of  developed countries.  That approach was unlikely to be effective.  
1.51.   The representative of the United States  attached great importance to the issues of e -
commerce and digital trade, and was encourag ed by the energy that many Members ha d devoted 
to these topics  over the past year.  Digital services ha d been a powerful engine of economic growth 
in many countries, and enhancing trade in these services w ould help guarantee that no country 
was left behind in this ongoing digital transformation.  Ensuring that digital trade realize d this 
promise w ould require all participants to provide a regulatory and policy environment that was 
transparent, non -discriminatory, and open.  In addition to the rules proposed by  the European 
Union, which were designed to help facilitate online transactions, he also emphasize d the 
importance of ensuring the free flow of data across borders, preventing discriminatory or 
unnecessarily restrictive requirements on the location of comp uting facilities, and avoiding customs 
duties on electronic transmissions , including digital products.  Providing such guarantees through 
multilateral rules would have compounding effects on economic growth, providing benefits not just 
to those firms in the  ICT industry, but across the manufacturing, agricultural, and services sectors, 
all of which were increasingly dependent on digital tools to be globally competitive.   
1.52.   He believe d that the chance s of reaching a credible outcome would be better if Members 
approach ed these issues over a longer timeframe than the one proposed by the European Union . 
Regarding the substance of the proposal, he thought, m ost importantly, that much of the effect of 
the proposed disciplines was already covered by existing measures and cooperation mechanisms.  
The UNCITRAL Model Law on Electronic Signatures, adopted in 32 states, and the UNCITRAL Model 
Law on Electronic Commerce, adopted in 69 states, already codif ied the notions of non -
discrimination, technological neutrality , and fu nctional equivalence, which were essential to e -
commerce . These m odel laws effectively cover ed the same ground as the European Union's  
proposal on e -signatures and e -contracts.  The Unsolicited Communications Enfo rcement Network 
already provided  a forum for  governments to work cooperatively across borders to fight spam. 
Meanwhile, technical measures to combat spam were proving more effective than any law or 
measure in forestalling the kind of messages that undermine d consumer confidence.  Given these 
existing  measures and mechanisms, which ha d proven successful in creating just the sort of 
enabling environment that the proposals s ought , what d id the European Union see as the 
additio nal value created by WTO rules?  
1.53.   The representative  was also eager to see langua ge that would be used to facilitate the 
participation of developing countries, as noted in paragraph 11  of the proposal . He was sceptical  
that developing countries would require broad special and differential treatment for rules such as 
these.  Measures on e-signatures, e -contracts and s pam were neither costly nor complex to 
implement, and many developing countries were among the 69 countries that ha d adopted the 
UNCITRAL Model Law on Electronic Commerce.  Lastly, he noted that European Union proposals on 
these issues had been discussed in other negotiations over the past several years.  His delegation TN/S/M/4 7 
 
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  was open to further debate, but caution ed against excessive optimism that it would be easy to 
quickly find consensus on these rules in a WTO context.  
1.54.   The represe ntative of Chinese Taipei  was pleased to see strong efforts to stimulate 
discussions.  Generally, her delegation was open to any proposal aiming to promote e -commerce, 
as long as it was devoted to the establish ment of  an open and fair environment with recip rocal 
access for service suppliers from both developed  and developing economies.  She thought that the 
topic should be considered in a broad and comprehensive fashion . Her delegation would  engage 
constructively in order to identify effective ways of promoti ng e-commerce.  
1.55.   The representative of the European Union  wished to respond to some of the questions and 
comments made.  His delegation would try to address all questions at the nearest opportunity.  The 
delegation of Thailand had asked about the scope of the proposal.  He wished to be clear that the 
proposal was limited to trade in services.  For that reason, discussing the proposal w ithin the 
Special Session of the Council for Trade in Services was relevant.  The delegation of Hong Kong 
China had asked whether the proposal would apply to all sectors, or only committed ones.  He had 
a preference a priori  for the rules to apply to all sectors, but this was an aspect that he  would be 
willing to further discuss and potentially revisit . The delegation of Hong Kong Chin a had also 
referred to Article XVIII, and asked whether the European Union was proposing a plurilateral 
outcome or rather disciplines that would be mandatory for all Members.  He said that he  would 
seek to obtain the approval of all Members  and that h e was looking for a multilateral outcome, if 
possible.   
1.56.   Regarding issues raised about mandate, he was surprised to hear comments suggesting 
that the European Union tried to circumvent  WTO rules.  Circumvention implied an element of bad 
faith, and he rejected sugg estions made in that regard.  Article XVIII said that Members might 
conduct negotiations and the European Union was not trying to force anyone into an outcome that 
it did not want.  Article XIX said that Members shall negotiate and referred to specific 
commi tments.  Elements proposed by his delegation could be specific commitments and therefore 
fall under GATS Article XIX.  In response to a question from the delegation of Uganda, he did think 
that the discussions in regular bodies had exhausted the technical pr eparations for initiating 
negotiations on the issues proposed today.  His delegation had responded to all questions that had 
been raised in that deliberative context.  The European Union's earlier communication in the 
Regular Session of the Council had a much broader scope , while the proposal presented today 
focused on a few issues that he felt were not very contentious . The delegation of Brazil had said 
that the European Union was trying to multilateralize aspects that it already had in its domestic 
legislat ion. Obviously, he would not put forward a proposal that he could not abide by, but, at the 
same time, his delegation had clearly indicated that complementary proposals were welcomed.  He 
thought that his delegation's proposal was entirely compatible with broader discussions on a 
potential future mandate for broader and longer -term discussions on e -commerce . The v arious 
areas touched upon in his delegation's earlier e-commerce discussion paper fell under the existing  
negotiating  mandate to the extent that th ey related to services.  Clearly, the GATS applied to 
electronic transactions.  The Council for Trade in Services' progress report to the General Council 
on the Work Programme , which was adopted  by Members , said that the  electronic delivery of 
services f ell within the scope of the GATS.  The fact that some services were supplied electronically 
did not somehow exclude them from consideration by the Special Session.  Some delegations 
suggest ed earlier  that the absence of mention of Internet or consumer protection  in the 
Negotiating G uidelines meant that these issues could not be addressed.  The guidelines did not 
mention interconnection or independent regulators, but those issues h ad formed part of the 
negotiations.  
1.57.   In response to a comment from the delegation of I ndia, he clarified that the proposal would 
apply to all modes of supply, and not only mode 1.  Reacting  to a comment from the delegation of 
Egypt, he clarified that the European Union had explored all avenues to fight spam within the 
single market.  Much had  been done bilaterally, and he thought that the proposed rules were now a 
natural fit for multilateral discussions.  Regarding the comment from the delegation of the United 
States about the value added of the proposed rules, he noted that the UNCITRAL instr uments were 
non-binding.  He felt that there would be much value added in transforming that into a binding set 
of principles.  He would be happy to continue the discussion and address remaining questions in the 
format that the Chair would see fit.  TN/S/M/4 7 
 
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  1.58.   Another re presentative of the European Union wished to provide responses to some of the 
more technical questions raised.  Regarding consumer protection, she said that the intention was to 
have a broad scope , not limited to fraudulent and deceptive practices, but also  covering, for 
example , misleading or aggressive practices.  Consumer trust was the cornerstone of a good policy 
environment and an enabler of trade.  Measures contributing to consumer trust might involve 
transparency, including price transparency, redress m echanisms, or withdrawal periods . She did 
not think that the WTO should be setting consumer protection standards, which was why her 
delegation did not wish to be m ore prescriptive regarding the specific measures contributing to 
consumer trust.  
1.59.   With respect  to provisions on spam, a number of questions had mentioned the issue of 
scope.  It was true that Paragraphs 3 and 6 were slightly broader in scope, as they covered 
commercial electronic messages in general, while the provisions on opt -in and opt -out were l imited 
to electronic messages.  This was a conscious choice, resulting from analysis of what had been 
done in various regional trade agreements.  Some delegations had asked how the European Union 
saw the recourse mechanism applying in a cross -border context.  She said that the intention was 
not to have rules that applied across borders, but rather to have domestic frameworks provid e for 
such mechanism.  Cross -border cooperation on regulatory matters, including as regard s spam, was 
addressed in paragraph 2 of th e proposed text.  Turning to the set of provisions on electron ic 
authentication and trust  services , she said that the text aimed to cover both these elements, which 
she saw as different.  Electronic authentication was about the process of verifying identity.  This 
served to prove the correctness of  the data provided.  In contrast, electronic trust services 
consisted in creation , verification , and validation  services.  The most obvious example was 
electronic signatures , but other examples existed.  The reason for the broader scope was that 
many businesses had indicated that electronic signatur es were not sufficient and that many other 
types of services existed.  For example, electronic time stamps were used to provide proof that 
electronic documents had been  submitt ed within a certain time -frame.  To conclude, she said that 
her delegation was flexible on language used in the text  and would be ready to explore this further 
in bilateral meetings .  
1.60.   The Chairperson  underscored the good level of participation from delegati ons. A number of 
delegations had mentioned issues of mandate and this was one of the topics that needed to be 
further discu ssed. More time would be needed to address questions raised today.  He would consult 
with delegations and convoke further meeting s as appropriate to facilitate discussions.   
2  ITEM B: OTHER BUSINESS  
2.1.  Since there was no other business, the meeting was adjourned . 
 
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