The US has included Electronic Commerce chapters in some of its FTA since the early 2000s. Early FTAs that included such chapters include the US-Singapore FTA from 2004 and the US-Australia FTA from 2005.
Early ‘Electronic Commerce’ chapters often focussed on more technical issues and standards linked to facilitating e-commerce, but some rules were relevant to broader areas such as on non-discrimination of digital products, and avoidance of custom duties.
As the US position became more coherent on digital trade, we see that rules appearing within FTAs begin to grow – mirroring the USTR’s digital trade agenda and the desire to push electronic commerce chapters into broader areas.
For example at an earlier stage, agreements did not include rules around free-flows of data. Some Electronic Commerce chapters began to include text that mentions free-flows of data such as the US-Korea (KORUS) agreement in 2012. At this stage this tended to use the language of parties ‘endeavouring’ to comply rather than them being strongly binding.
The TPP is a key agreement in bringing forward a more structured set of rules on digital trade, which have then used as a framework for other negotiations. A recent important regional agreement in this respect was USMCA which was ratified in 2020.
The USMCA agreement is now being used by the US as a template for digital trade chapters in other free-trade agreements. For example the November 2019 the “US-Japan Digital Trade Agreement” essentially mirrors the USMCA. Leaked 2019 discussions on US-UK post-Brexit digital trade chapters highlight US negotiators positioning the USMCA text as the ‘baseline’.