Technological Neutrality and Regulation of Digital Trade: How Far Can We Go?

In this age of rapid digital transformations, the principle of technological neutrality can help the international economic community adapt dated rules to changing realities. While the acceptance of this principle would respond to the difficulty of timely norm making and norm updating in international relations, it could also cause legal uncertainty in the case of unforeseen technological developments in the future. Therefore, not every country today is willing to unconditionally acknowledge the applicability of ‘old’ rules for any emerging trading patterns enabled by, or based on, digital and other technological innovations. The World Trade Organization, the United Nations Commission on International Trade Law and several regional trade agreements have addressed technological neutrality in the context of electronic commerce and digital trade. This article examines this issue, focusing on such areas of trade regulation as services, intellectual property and paperless trading, and concludes that the principle of technological neutrality should be given universal recognition, supplemented by policy flexibilities where necessary.1