Abstract: Digital trade regulation has multiple goals. A country’s restrictions on digital trade based on considerations of public morals and public order, privacy protection, and national security need to seek exemption from the exception clauses. The general exception clauses related to digital trade regulation are mainly contained in Article 14 of GATS, of which the most relevant cases are exceptions on grounds of public morals and public order, and privacy. The clauses can provide some defense for regulatory measures. Cybersecurity can constitute national security in WTO security exception clauses, and the provisions related to digital trade regulations are contained in Article 14bis of GATS. The defense for cybersecurity measures under Subparagraphs (i) and (ii), and Paragraph 1 (b) of Article 14bis is limited to situations in which a member’s military or nuclear facilities are protected from cybersecurity threats. The security exception most relevant to cyber-attacks is “in time of war or other emergency in international relations” under Paragraph 1 (b) (iii) of Article 14bis of GATS. Security exceptions provide very limited defenses for cybersecurity measures. In order to coordinate digital trade liberalization and national security, it is possible to resolve divergences between countries in cybersecurity governance through routes outside the WTO dispute settlement mechanism.

Keywords:digital trade; exemption exceptions; WTO; general exceptions; national security exceptions

The author of this article is an assistant research fellow at CASS Institute of International Law and an editor of the journal Chinese Review of International Law. Source: 6 (2021) Hebei Law Science.