Practices  |  International Trade

Digital Trade

Overview

The rapid expansion of digital trade is creating new international trade opportunities, as well as challenges. Digital trade includes end-products and services provided over the Internet, as well as tools to increase companies’ competitiveness and productivity. These tools include cloud computing, supply chain management data, electronic order and payment processing, and financial data flows. Digital trade also encompasses the information and communication technologies and equipment that are the physical and software infrastructure of the Internet.

As digital trade has grown, so have the barriers to digital trade. These barriers include:

  • Tariffs and quotas on imports of information and communication technology equipment, such as routers and servers;
  • Localization requirements that compel the conduct of digital trade-related activities within a country as prerequisite for doing business there, such as requiring the use of in-country servers, or local hardware and software;
  • Cross-border data flow restrictions that prohibit the export of data outside a country;
  • Intellectual property infringement, sale and distribution of counterfeits via the Internet, and online theft of intellectual property;
  • Burdensome or discriminatory national and local standards that deviate from recognized international standards or impose redundant conformity assessment and testing requirements; and
  • Filtering and blocking restrictions that impede access to foreign websites and data flows.

Wiley Rein’s cross-disciplinary Digital Trade Team draws upon substantive expertise in international trade, telecommunications, and privacy and cybersecurity, among others. Our professionals have occupied high-level positions in multiple Administrations, numerous regulatory agencies, and on Capitol Hill. Our unique blend of government and private sector expertise and strong relationships with relevant decision-makers enable us to provide creative solutions for our clients.

Wiley Rein regularly helps businesses address the full range of digital trade barriers, including developing legal and policy strategies to engage with key decision makers in the Executive branch, Congress, and foreign governments. There are many contexts for solving digital trade issues, from seeking direct action on an issue to having it resolved through trade agreement provisions. We determine the most effective way of enlisting government support in all of these approaches.

Our digital trade and e-commerce experience includes:

  • Identified draft Internet service regulations in an Asian country that required in-country server localization, and assisted a client in removing this trade barrier.
  • Assisted several telecom and Internet clients in analyzing and revising the draft telecom and Internet chapters of the Trans-Pacific Partnership (TPP) agreement.
  • Analyzed how differential telecommunications rates maintained by a client’s competitor potentially violated World Trade Organization (WTO) agreements, including the General Agreement on Trade in Services (GATS) and the Basic Agreement on Trade in Telecommunications Services (BATS).
  • Helped a leading U.S. telecommunications manufacturer in working with the U.S. Trade Representative to remove an unlawful hardware restriction that was a technical barrier to trade.
  • Drafted Federal Communications Commission comments regarding whether proposed U.S. net neutrality rules were consistent with U.S. international obligations such as the GATS. 
  • Developing novel strategies for combatting Internet sales of counterfeit goods and Internet based intellectual property theft, and obtaining the disabling of such digital misuses of intellectual property on behalf of a wide range of Fortune 500 companies.    

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