The New Law of Digital Trade: Electronic Contracts, Data Flows and Cross-Border Commerce under Emerging International Legal Frameworks

Abstract

The article considers whether existing international legal regimes can sufficiently regulate data-driven cross-border commerce without the need for a single, overarching digital-trade code. Using a doctrinal and comparative method, it examines five jurisdictions – the United Kingdom, Australia, Canada, India and Pakistan – across four functional dimensions: electronic contracting and authentication; electronic transferable records; cross-border data governance; and platform, consumer and cross-border redress. The analysis distinguishes binding international obligations from model laws, domestic legislation, preferential trade agreements and new institutional work. It contends that the international legal framework has not developed in a uniform manner. The UNCITRAL Model Law on Electronic Commerce, the Model Law on Electronic Signatures and related domestic legislation provide for a relatively high degree of functional equivalence for electronic communications and signatures. Paperless trade has advanced with the Model Law on Electronic Transferable Records, but implementation is uneven and interoperability remains a network issue. Data-driven commerce presents a unique challenge. While trade agreements may discipline some constraints on cross-border data flows, privacy and sectoral regulation tend to be domestic and create legally salient interfaces with trade commitments. Platform liability, consumer jurisdiction and cheap cross-border redress are even less harmonised. The article concludes with an argument that the current framework is best understood as a layered and function-specific system. The main contribution is an analytical framework to evaluate legal capability by the function a rule performs and the legal layer from which that rule derives. The comparison also indicates that domestic implementation, interoperability and institutional capacity are as important for the practical governance of digital trade as the existence of international instruments.