Feasibility Analysis Of China Applying CPTPP Non-Discriminatory Treatment Of Digital Products Clause

China has already started the agenda of joining CPTPP.As a core clause in the Ecommerce chapter of CPTPP,the Non-Discriminatory Treatment of Digital Products Clause under CPTPP will inevitably involve the feasibility of China’s application of this clause.Taking the non-discriminatory treatment provisions of CPTPP digital products as the research object,this study analyzes relevant domestic laws and policies,relevant trade agreements and provisions related to non-discriminatory treatment of digital products,as well as the possible difficulties and challenges in applying this clause in China,in an attempt to predict the feasibility of its application in China.This paper starts with the concept of digital products under CPTPP and the application of this clause,and then analyzes the difficulties in China’s application of CPTPP NonDiscriminatory Treatment of Digital Products Clause and whether it can be applied from two perspectives: the core obligations of this clause and the exceptions related to this clause.Finally,it ends with some feasible suggestions.The concept of digital products is constantly updated with the development of science and technology.The definition of digital products under CPTPP is different from the previous definition of digital products.The definition directly limits digital products to electronic transmission digital products,no longer including the digital products with physical carriers.As for the application of the Non-Discriminatory Treatment of Digital Products Clause,the CPTPP Non-Discriminatory Treatment of Digital Products Clause retains three exceptions,which promotes the liberalization of trade in digital products and at the same time carries out appropriate restriction and contraction.From the perspective of whether China can accept the core obligations of the NonDiscriminatory Treatment of Digital Products Clause,China will encounter some difficulties in applying this clause.Its core obligations mainly include three aspects:accepting the negative list of service trade related to the digital product trade,recognizing “like digital products” and related behaviors not constituting “less favorable treatment”.First of all,the non-discriminatory treatment of digital products is restricted by the negative list of relevant services trade,which is more difficult for China to accept in the short term.The main reason can be divided into three parts.First,the FTAs China has signed so far still adopts the positive list in services trade,which shows a low degree of openness.Secondly,although China has actively tried to apply the negative list to improve its openness in international service trade,there is still a big gap between China and CPTPP.Thirdly,the negative list will also reduce our minister of culture.Second,in the aspect of recognizing “like digital products”,the absence of the concept of digital product in domestic law,the characteristics of digital products themselves as well as many complicated factors involved in them,the new business model of digital product trade,and the more complex identification of “like services”under CPTPP make it more difficult for China to identify “like digital products”.Third,both China’s Internet management behavior and its strict regulation of digital product content have the possibility of “lower treatment” lead to greater possibility of constituting “less favorable treatment”.Thus,China’s acceptance of the core obligations of the Non-Discriminatory Treatment of Digital Products Clause is rather limited.Therefore,our country should be careful on the application of Non-Discriminatory Treatment of Digital Products Clause.Therefore,China should be cautious in the application of this clause.From the perspective of exception provisions,relevant exception provisions cannot provide sufficient policy space for the application of Non-Discriminatory Treatment of Digital Products Clause in China.Exceptions related to this clause mainly include public morality and public order exceptions,privacy protection exceptions security exception.Applying public morality and public order exceptions requires a greater burden of proof on the “necessity”.Applying the privacy exception may encounter the risk resulted by differences in treaty interpretation and difficulties in proof.Although Security Exception under the CPTPP can provide an exemption against China’s violation of Non-Discriminatory Treatment of Digital Products Clause,the clause itself bears the risk of abusing security exception,and it remains uncertain whether the self-determination right of the concerned parties conferred by this clause can be recognized among the parties.To sum up,the exemption effect of these three exceptions is limited,so China should apply Non-Discriminatory Treatment of Digital Products Clause with caution.Conclusions can be drawn from the above analysis that at present,China faces many challenges in applying the Non-Discriminatory Treatment of Digital Products Clause under CPTPP.However,it doesn’t mean that China is unable to accept this clause,nor does it mean that academic discussion concerning this clause is over.The realistic demand of joining CPTPP forces China to face the great challenge posed by this article.In this regard,our country can begin to meet the challenge from the following four aspects.In this regard,China can start with the following four aspects.Initially,China should establish sound domestic rules for trading in digital products.Second,China should actively test new regulations in domestic free trade zones.Thirdly,China needs to strengthen its ability to invoke exceptions.Last but not least,China should actively promote the construction of relevant international digital product trade rules.