General Issue
Vol. VIII, No. 2
(Winter '16)

1 

Legal Perspective on Digital Trade: Keeping the Internet Neutral

Tvisha Shroff & Katrin Kuhlmann

The issue of internet neutrality, while a subject of heated debate in developed countries across the world, has more recently become a matter of intense discussion in emerging economies like India. A recent order by the Indian telecom regulator has prohibited the ‘zero-rating’ of data services by telecom providers - a practice largely acknowledged to be a violation of the net neutrality principle. This move has put brakes on the roll out of Facebook’s recent ‘Free Basics’ initiative that aims to provide free but limited data services to poor sections of the Indian population. While the traditional discourse on net neutrality has largely remained in the domain of technology law, this paper analyses trade-related implications of the Indian decision, making a case for net neutrality from a trade and development perspective. It is argued that the international trade law framework constitutes an important source of anti- trust safeguards governing the trade of internet-based services. An open and neutral internet is key to preventing concentration of market power in the digital economy, ensuring ease of entry to small and medium-sized internet- based business owners in India.

2

TTIP: The Rise of ‘Mega-Market’ Trade Agreements and its Potential Implications for the Global South

Aoife O’Donoghue & Ntina Tzouvala

This article intervenes in the growing academic discussion about the potential impact of currently negotiated trade and investment agreements such as the TTIP, the CETA, and the TPP. To do so, our contribution focuses on the rarely asked question of how these agreements will impact the Global South. After showing that there is no stable and clear international legal definition of a ‘developing’ state, this contribution argues that the EU already has a number of legal obligations towards the Global South (for example, the Cotonou Agreement) that need to inform the debate about the objectives and potential impact of the TTIP. Further, our argument emanates from the position that it was the failure of the Doha Development Round of negotiations in the WTO that paved way for what we understand to be a ‘strategic bilateralism’ of the Global North. The second part of this article attempts to evaluate the potential impact of this strategic bilateralism on three distinct fields, first, on the relations between the West and emerging peripheral powers, such as China or Brazil; second, on the economic stability and viability of the Least Developed Countries; and third, on the most marginalised and vulnerable sections of the society regardless of their nationality. Our tentative conclusion is that given the potential adverse impact on all these three fronts, it is essential for the EU to re-evaluate its strategy.

3

The Impact of the TPP on Opening Government Procurement to International Competition in the Asia-Pacific Region

Jedrzej Gorski

The Trans-Pacific Partnership (“TPP”) would have been by far the world’s largest regional trade agreement. The TPP will still be of tremendous regional importance if it endures in some form following the recent withdrawal from it by the USA, and if the USA incorporates the procurement related concessions reached while negotiating the TPP into bilateral agreements. As a complex multi-theme agreement, the TPP also covers government procurement among many other issues. While the TPP on the whole may not bring about a Copernican revolution in terms of actual trade liberalisation and market access, the TPP procurement chapter may bring about a huge change in terms of opening the TPP parties’ government procurement markets to foreign competition.

Prior to the TPP, among the TPP parties, only the USA, Canada, Japan and Singapore have been long-standing parties to the WTO Government Procurement Agreement (“GPA”) which New Zealand joined only in 2015 and Australia has been negotiating its accession. Apart from that, the scope of other public procurement liberalising international trade commitments has been very limited in the South-East Asia region and among TPP-signatories from South America, with only North American TPP-signatories having their public procurement markets previously integrated under the North American Free Trade Agreement (“NAFTA”).Public procurement relevant commitments within the Association of South-East Asian Nations (“ASEAN”) have been very limited and unclear, whereas procurement rules agreed upon by members of the Asia-Pacific Economic Co-operation (“APEC”) have been non-binding. Liberalisation of public procurement markets in the Trans-Pacific area did not gain momentum until (i) the 

conclusion of the Trans-Pacific Strategic Economic Partnership (“TSEP” or “P4”), being the TPP’s predecessor, and (ii)subsequent proliferation of bilateral trade agreements directly preceding the conclusion of the TPP.

Procedural provisions imposed by the TPP procurement chapter virtually copy provisions of the GPA with minor modifications only, and this convergence implies that the determination of the TPP procurement chapter’s coverage in principle emulates solutions of the GPA model (with lists of covered procurers, goods, services and construction services as well as value-thresholds, along with averagedscopeofcountry-specificcommitments). MajordeficienciesoftheTPP procurement chapter’s coverage can be seen in some countries’ refusal to cover sub-central procurers (in the case of Malaysia, Mexico, New Zealand, United States and Vietnam) and utilities services (in the case of Canada, Mexico and Vietnam) as well as in extremely long transition periods (in some cases in excess of twenty years) for decreasing contract-value-thresholds of the TPP procurement chapter’s application to standard levels (in the case of Malaysia and Vietnam).

In terms of allowing non-commercial considerations in the public procurement process, the TPP procurement chapter green-lights the pursuit of sustainability- related goals to an even greater extent than the GPA. At the same time, country-specific derogations accommodate extensive traditional industrial/protectionist policies, for example by allowing significant set-asides from obligations under the TPP procurement chapter (in the case of Mexico and Vietnam).

4

Convergence and Divergence in the Investment Treaty Universe- Scoping the Potential for Multilateral Consolidation

Wolfgang Alschner and Dmitriy Skougarevskiy

How far are we from a multilateral investment treaty? In this paper we answer this question by empirically assessing convergence and divergence in the pool of existing bilateral investment treaties (BITs) scoping the potential for multilateral consolidation. To do so, we introduce a novel automated coding procedure, which investigates investment treaty content across 1628 English-language BITs and their 22,500 articles. We show that treaties are split into older, short and shallow agreements and newer, deep and complex ones. This creates possibilities for consolidation around a lowest common denominator. A multilateral treaty with the 27 most prevalent features (out of a total of 66 coded features) would already substitute the content of 50% of all BITs and one with the 36 features could replace 80% of agreements. In contrast, consolidating practice around deeper agreements balancing investment protection and State sovereignty explicitly is politically more desirable, but also more ambitious. Only a minority of treaties contain non-investment protection features and their design diverges increasingly as States adopt varying architectures to solve similar policy challenges. As a result, further consolidation at the regional level and partial multilateralizations become necessary stepping-stones, if a future multilateral investment agreement is to converge practice around deeper BITs.