JOB/GC/144  
 
20 October 2017  
(17-5698) Page: 1/5 
General Council  Original: English  
 
THE WORK PROGRAMME O N ELECTRONIC COMMERC E  
STATEMENT BY THE AFR ICAN GROUP1 
The following statement, dated 20  October 2017, is being circulated  at the request of the 
delegation of Rwanda on behalf of the African Group.  
 
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1  INTRODUCTION  
1.1.  This statement is an African Group contribution to the ongoing preparations towards a 
possible draft recommendation to Ministers at MC11 on a Decision on E -commerce. This statement 
was delivered at the Informal Open -ended Meeting on the Work Programme on Electr onic 
Commerce on 16 October 2017.  
1.2.  At the last Informal Open -ended Meeting on the Work Programme on Electronic Commerce 
on 5 October 2017, the General Council Chair suggested that proponents submit their proposed 
texts, taking into consideration the views e xpressed in the room. It is unfortunate that the 
proponents have failed to do so.  
1.3.  In this regard, we wish to recall the African Group statement delivered on 5 October 2017 at 
the Informal Open -ended Meeting on the Work Programme on Electronic Commerce, an d reaffirm 
the African Group position. The African Group may be able to agree to continue the exploration of 
issues under the 1998 WTO Work Programme on Electronic Commerce (Work Programme), 
however we will not agree to go beyond the current structure or i nstitutional arrangement of the 
Work Programme.  
1.4.  In building the Africa we want, towards the structural transformation and industrialisation of 
our economies, our African Union Ministers of Trade have pronounced 'that the work we undertake 
in multilateral t rade and rule -making support Africa 's continental integration agenda and,  at a 
minimum, not undermine it '2.  
1.5.  On the draft texts in JOB/GC/137, JOB/GC/138 and JOB/GC/139, the African Group offers our 
general and specific views on the proposals.  
2  ESTABLISHMEN T OF A WORKING GROUP   
2.1.  Establishing a Working Group on E -commerce p resumes one of two things: One, that 
something is not working with the current structure; and two, that the new structure will provide 
some kind of value -addition. A number of delegations ha ve also said that the Work Programme has 
been exhausted.  
2.2.  In going through the discussions on e -commerce that have taken place in the last ten to 
fifteen years in the WTO, both at a horizontal level in the General Council and in the relevant WTO 
bodies (CT D, CTS, CTG, TRIPS Council), Members  will observe that discussions, even from a trade 
policy perspective have not been adequately explored, and where it has, it has barely touched the 
surface. We should also recall that for many years, there was little or no discussion on  
                                                
1 This statement is without prejudice to the position of one Member . 
2 WT/L/1004 . JOB/GC/144  
 
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  e-commerce. E -commerce, and the digital economy have not been static, and many Members  are 
still coming to grips with what appears will be very profound changes brought on by the digital 
transformation of which e -commerce is integral. Hen ce, the evolution of the sector makes it 
necessary to continue the exploratory discussions under the Work Programme.  
2.3.  In JOB/GC/138, proponents state that 'existing WTO Agreements apply to electronic 
commerce '. If this is the case, are the proponents also s uggesting that Members ' Schedules of 
Commitments negotiated in the Uruguay Round automatically apply to new technologies such as 
3D printing, robotics, drone delivery and Artificial Intelligence, to name a few?  
2.4.  The African Group objects to this assumption  because it has no legal basis in the WTO 's 
framework. It also goes against the basic principle of progressive liberalization. In addition, new 
business models, new services and new technologies that did not exist at the time Members ' 
Schedules were negoti ated do not apply post -hoc.  
2.5.  Members  will recall that there still remains a long paper trail in the WTO of 19 years of 
unresolved issues pertaining to e -commerce. These include the divergent views on the 
technological neutrality  of the GATS, the distinctio n between, and application of GATS Modes  1 
and 2 in e -commerce, whether products delivered electronically are services or goods or both, and 
the classification of 'new services ', to name a few.  
2.6.  If these issues were resolved, then why are some Members  advoc ating new multilateral rules 
on e-commerce? A Working Group will not replace these systemic divergences, and these 
discussions, as per the Work Programme are required to take place in the bodies responsible for 
administering the relevant Agreement.  
3  MULTILA TERAL RULES ON ELECT RONIC COMMERCE  
3.1.  It is perplexing that some Members  are advocating for new multilateral rules on e -commerce. 
We have already undertaken enough rules so far. The multilateral rules as they are, are 
constraining our domestic policy space and ability to industrialize. Before the GATT came into 
being, industri alized Members  have benefited from the absence of rules, through the utilization of 
policy space. They then closed this space through GATT Agreements notably by prohibiting the use 
of local content requirements; industrial subsidies; infant industry protec tion, among others. In 
other words, the policy instruments they used during their development process were denied to 
late comers through GATT Agreements; what we qualified in the CTD SS discussions as 'kicking 
away the development ladder '. 
3.2.  This is the very  reason why there is a Doha Development Agenda, with development 
outcomes and aspirations for redressing the imbalances inherited from GATT/WTO agreements. 
Yet, the propaganda that new e -commerce rules will be good for developing countries has been 
highly contested. Hence, if developing countries cannot find relief in the current mandates and 
rules in a Multilateral Trading System that is intended to serve all its Members , then any attempt 
to adopt new rules on new issues – particularly if those rules are m eant to further marginalize poor 
economies as exemplified by TPP e -commerce rules, then new rules would entrench existing 
imbalances and further constrain the ability of our governments to implement industrial policy and 
catch -up.  
3.3.  The reference to MSMEs i n various submissions, including in JOB/GC/138 and JOB/GC/139 is 
interesting. There is a false narrative that has gained currency in relation to MSMEs, which seeks 
to paint some delegations as the new Messiahs that we have been waiting for to deliver MSMEs  
from all of their troubles. Are the proponents suggesting that the current rules we have been 
negotiating in fulfilment of the DDA mandate, such as on substantial reduction of OTDS in 
Agriculture; Cotton; and Special and Differential Treatment, with the v iew to promoting structural 
transformation and industrialization in building the Africa we want, would not be of benefit to 
MSMEs in Africa? Why is it that we have not seen the same advocates speak strongly in favour of 
the conclusion of the Doha Round, wh ich would have a direct, immediate and positive effect for the 
thousands, if not millions of deserving MSMEs? Are they suggesting that the fact that we change 
the mode of operation, that it would suddenly eliminate the supply -side constraints, lack of 
technology and lack of finance, and the SPS and TBT constraints that many MSMEs face?  JOB/GC/144  
 
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  3.4.  The narrative is that multilateral rules on e -commerce will leapfrog development through the 
power of MSMEs. Yet, the proposed typology of rules which are confirmed through the Footnote in 
JOB/GC/138, is that MSMEs as we understand the scope of this definition to be, are the least likely 
to be able to effectively compete with multinational corporations, who have become global digital 
leaders, and have decimated smaller compan ies and who have benefitted from digital industrial 
policies such as subsidies, R&D subsidies, development of, and access to, and ownership of 
technologies, economies of scale, government -sponsored infrastructure, tax benefits, etc. We can 
therefore conclu de that given the narrative on MSMEs in recent months, and their sudden 
prioritization in e -commerce is not to address the problems faced by MSMEs, but to advance an 
agenda for rules. MSMEs, in our view are only being used to fast -track the proponents ' agenda. 
3.5.  JOB/GC/138 limits the evaluation of the Working Group to the proposals that are footnoted. 
These include the hard rules that the African Group have condemned for over one year now, such 
as ensuring the free flow of data, no data localisation requirements, permanent moratorium on 
customs duties, non -disclosure of source code, barring forced technology transfer, etc. It is also 
interesting to note that the African Group submission contained in JOB/GC/133 is not part of the 
evaluation of this proposed Working Group. Hence, the Working Group is intended to serve as the 
conduit and channel for these new topics contained in the current submissions, and thereafter a 
decision will be taken on the need to have rules on them.  
3.6.  In JOB/GC/138, the Working Group will dec ide in one year 's time to negotiate rules. In 
JOB/GC/137, our reading is that it allows for the possibility of developing rules in the Working 
Group without any timeframe. Hence, this Working Group is de jure a negotiating group.  
3.7.  The African Group will no t support any ideas for negotiating rules, or move in a direction on 
developing rules on e -commerce. We believe it is entirely premature.  
4  TOPICS FOR DISCUSSIO N 
4.1.  By the Working Group requesting the WTO bodies for assistance in JOB/GC/137, it reverses 
the st ructure established in the Work Programme. In other words, it is no longer bottom -up where 
the technical issues were dealt with in the technical bodies first, and upon maturity, would be 
taken to the General Council. The Working Group would instead be top -down. This is not an 
acceptable solution because the topics for discussion in the Working Group are also open -ended.  
4.2.  While in JOB/GC/137, the introduction of topics is Member -driven, we have already seen a 
number of submissions currently on the table that  have been identified as international Internet 
public policy issues by the United Nations Commission on Science and Technology for Development 
in the Working Group on Enhanced Cooperation in November 2014. Several of these issues being 
brought into the WT O have been discussed at length by other international organisations that have 
policy authority over these issues, or they have been resolved in these international organisations. 
They include:  
a. UN Guidelines for Consumer Protection, which includes a secti on on e -commerce;  
b. UNCITRAL Model Law on Electronic Signatures;  
c. UNCITRAL Model Law on Electronic Commerce;  and 
d. Unsolicited Communications Enforcement Network to curb Unsolicited Commercial 
Electronic Messages, or Spam . 
4.3.  Hence, in identifying those 'trade -related issues relating to global electronic commerce ', 
appropriate issues have to pass two tests. First, whether  they fall under the scope of the WTO in 
the Marrakech Agreement in Article II.1 that 'the WTO shall provide the common institutional 
framework fo r the conduct of trade relations among its Members …'; and second, whether it falls 
under the existing WTO Agreements covered under the Work Programme.  JOB/GC/144  
 
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  5  'E-COMMERCE FOR DEVELOP MENT AGENDA '  
5.1.  The African Group views the so -called 'E-commerce for Development A genda ' as a 'Trade 
Liberalization Agenda '.  
5.2.  It is not clear how the proponent rationalizes JOB/GC/139 vis -à-vis the existing Work 
Programme, which already accommodates discussions on development -related issues. These  are 
contained in paragraph 1.1 where th e comprehensive Work Programme was established to: 
'examine all trade -related issues relating to global electronic commerce, taking into account the 
economic, financial and development needs of developing countries ', and in paragraph 1.3  where it 
states th at 'the work programme will also include consideration of issues relating to the 
development of the infrastructure for electronic commerce '. In addition, and very importantly from 
a horizontal perspective, development discussions fall under the competence of all four relevant 
bodies.  
5.3.  Of particular and direct relevance is the Committee on Trade and Development, one of the 
mandated bodies under the Work Programme, whose Terms of Reference is to 'serve as a focal 
point for consideration and coordination of wo rk on development in the WTO, and its relationship 
to development -related activities in other multilateral agencies ', and '… to consider measures and 
initiatives to assist developing country Members , and in particular LDCs, in the expansion of their 
trade and investment opportunities …'.  
5.4.  Hence, by the introduction of JOB/GC/139, is the proponent suggesting that the CTD does 
not have a mandate to deal with the development asp ects being proposed under their 
'E-commerce for Development Agenda '?  
5.5.  On the collaboration efforts between the WTO and certain international and regional 
organisations, the African Group has a few questions.  
a. On what basis were these International Organizations (IOs) chosen? Other IOs have 
policy authority over several issue s that are being proposed as 'e-commerce  ' issues in 
the WTO. Will the WTO take over their mandate?  
b. If this is a 'development agenda  ' then why is there no reference to the ITU? 193 States 
are Members  of the ITU, who are responsible for allocating global radio spectrum and 
satellite orbits, developing technical standards that ensure networks and technologies 
interconnect, and more importantly, they have an international mandate to bridge the 
digital divide. This is the most prevalent issue underpinning any  discourse on e -
commerce in the WTO, since you cannot access or engage in e -commerce without having 
access to the necessary infrastructure.  
c. Why is there a presumption that developing countries need informational material from 
these organisations to assist  them to engage fully in the relevant discussions? The 
African Group, for example have been engaging fully in the current e -commerce 
discussions without this arrangement in place and our engagement is not dependent on 
material from these organisations eith er. These organizations have never needed 
permission from the WTO Members hip to perform their respective functions. 
Furthermore, the Work Programme in paragraph 1.4. already accommodates the 
consideration of work of other intergovernmental organisations, a s well as the Marrakech 
Agreement.  
d. The proposal also states that regional organisations should meet funding gaps.  Why are 
international financial institutions not required to meet funding gaps? It is the WTO 
where the rules are being advocated for, but re gional organisations must bear the brunt 
of funding? What is the rationale for this?  
e. The six areas identified in paragraph 3(a) to (f) are completely divorced from the 
development discussions that some Members , such as the African Group have been 
advocatin g for.  JOB/GC/144  
 
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  f. ICT Infrastructure and Services is about trade in services liberalization. This approach 
presumes that trade policy will solve the ICT infrastructure and services problem. This 
has not been the case in most of our countries! In fact, empirical evid ence shows us, and 
as has been expounded in the CTD SS discussions that, it is only through a strong 
foundational manufacturing base and through sector linkages, where manufacturing 
becomes the engine of steady growth of other sectors, particularly the ser vices sector, 
where it can lead to technological catch -up, economic diversification and the structural 
transformation of our economies.  
g. On Trade Logistics, it is difficult to comprehend how as net importers, developing 
countries and LDCs will benefit from this type of trade facilitation. If the genuine interest 
is development, then there should be a concrete attempt at developing the capacity of 
developing countries and LDCs to become exporters of electronically delivered products.  
5.6.  Overall, this proposal de viates from the already existing development agenda contained in 
the current Work Programme to include issues that are about market access and developing rules, 
and in our view, will not lead to development -friendly outcomes.  
6  CONCLUDING REMARKS  
6.1.  The Afric an Group have made our views, perspectives and priorities abundantly clear in this 
House, as well as in the formal sitting of the General Council, in our consultations, through a 
written submission in JOB/GC/133, and in all WTO bodies responsible for the i mplementation of 
the Work Programme.  
6.2.  In our view, the Work Programme has not been adequately tested to warrant a change in its 
structure. To date, only a large number of submissions have been tabled in the relevant bodies, 
but what we have observed is a general reluctance by proponents to dis cuss their submissions in 
any meaningful way both horizontally, and in the relevant bodies, possibly in the hope that they 
would seek to create a separate forum for their agenda as we see today.  
6.3.  It is up to the proponents to face their 'moment of truth ' because they have submissions on 
the table under the current Work Programme, and it is their responsibility to incite this discussion 
in the relevant bodies. Forum shopping will not provide an acceptable solution.  
6.4.  The African Group are neither demandeurs  for the Work Programme nor for the moratorium 
on customs duties on e -commerce. However, if some Members  feel that the discussions in the 
Work Programme have been exhausted, then they should be free to share with us what those 
outcomes are on all the outstan ding issues. The African Group cannot support the creation of 
multilateral fora just for the sake of creating motion when there is neither substantive movement 
nor value -addition, and more so when we know that advocated rules would serve to further 
margina lize late -comers.  
6.5.  On the moratorium, the African Group are still discussing it in view of the revenue 
implications of the current moratorium on customs duties, particularly in the context of increasing 
digitization of goods and services. For all these reas ons, the renewal of the moratorium should not 
be seen as automatic.  
6.6.  We urge the General Council Chair to ensure that the draft MC11 text on e -commerce is 
agreed in Geneva, and that the next time a meeting on this issue is convened, that all the African 
Group's concerns are taken on board.  
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