Abstract: Digital trade can be basically divided into trade in digital products and trade in digital services.In the context of international trade law, the classification of digital trade directly affects the application of rules, but the existing classification system of the WTO has not been adapted to the characteristics of digital trade. The classification problem of digital trade is prominently embodied in the identification of service trade model, the classification of digital products transmitted electronically, and the classification of digital service trade. In order to ensure the predictability of GATS rules, it is more appropriate to classify trade in digital services as Mode One. Considering the basic objectives of the WTO, digital products should be characterized as services, as GATS acknowledges the “imbalance” in the development of developing countries. For the classification of digital products, the American FTAs adopt a flexible and pragmatic attitude, avoiding defining them as goods or services, so that they can choose between GATT1994 or GATS. The WTO dispute settlement body has classified traditional services delivered online into the traditional services sectors in accordance with the principle of technological neutrality. Countries should be cautious about the principle of technological neutrality when negotiating the market opening of digital services.WTO members should update the existing classification system to reduce the uncertainties of the classification of digital trade. Making a special commitment to the market opening of new digital services is a realistic choice to respond to the difficulty of classifying new digital services.

Keywords: international trade law; digital trade; WTO; GATS; FTA

Author:Tan Guanfu, an assistant research fellow at the Institute of International Law, Chinese Academy of Social Sciences and an editor of Chinese Journal of International Law.

Source: 5 (2021) Journal of the Graduate School of the Chinese Academy of Social Sciences.