Cybersecurity, Technological Neutrality, and International Trade Law

• Published in: Journal of international economic law 2020-09, Vol.23 (3), p.723-745
• Main Author: Gagliani, Gabriele
• Format: Article
• Language: English
• Subjects: Computer security; CYBERSECURITY; Foreign trade regulation; INTERNATIONAL TRADE; INTERNET; TECHNOLOGY; WORLD TRADE ORGANISATION; World Trade Organization
• ISSN: 1369-3034; 1464-3758
• DOI: 10.1093/jiel/jgaa006

ABSTRACT There have already been several studies focusing on cybersecurity and international trade but the intersection between the two is multifaceted and can be approached from several viewpoints. This article focuses on cybersecurity and international trade from the specific perspective of technological neutrality. Although technological neutrality is recognized with different degrees of intensity both under World Trade Organization Covered Agreements and free trade agreements in a diverse range of fields (such as trade in services, technical barriers to trade, or intellectual property), its status in international trade law is unclear. In this uncertain context, it is argued here, technological neutrality has the potential of expanding the scope of trade obligations unpredictably. As a result, in the face of pressing cybersecurity concerns, technology-related trade measures risk to constantly violate trade obligations, making the trade-cybersecurity relationship even more complicated. The possibility to clarify the status of technological neutrality and the scope of technology-neutral provisions is chief among the solutions proposed in this article. Additionally, this article suggests for States either to be compensated when a trade-restrictive cybersecurity measure affects them, or to consider adopting a waiver in the field of technology, similar to what has been carried out in other areas.