The Uneasy Interplay between Digital Inequality and International Economic Law

Abstract

This article addresses the questions of what role international economic law has played in the story of digital inequality’s emergence and evolution and how international economic law can reduce digital inequality instead of enhancing it. The first part of this study illustrates the uneasy interplay between digital inequality and international economic law. At the network layer, the economic benefit of the General Agreement on Trade in Services’ Mode 3 (foreign investment) market access commitments in the telecommunications sector has never been realized in many developing countries and least developed countries (LDCs). There is a missing link between the consequences of trade liberalization and broadband investment. At the application layer, today’s platformization of services was an ‘unforeseen development’ at the time the World Trade Organization (WTO) was established. Through the pro-liberalization of WTO jurisprudence, members’ decades-old Mode 1 (cross-border) market access commitments have played more than a marginal legal role in global datafication. The second part of this study discusses how international economic law can confront and potentially redress that inequality. In the context of trade and development, it remains to be seen how the WTO members can find the common ground needed to balance digital trade liberalization and development needs. Unless infrastructure concerns from developing countries and LDCs are addressed, the ongoing WTO e-commerce trade deal may end up being labelled the Digital ‘Haves’ Trade Agreement. In the context of trade and competition, the increasing inequality in digital platforms calls for a set of international competition rules to appropriately address market power in the data sector. By imposing cross-border disciplines for competition policy and thus curbing the power of big digital platforms, the proposed WTO Data Reference Paper may well be an effective instrument to address the second dimension of ‘digital inequality’ – data colonization.