The WTO Disciplines and Trade in Products Powered by Artificial Intelligence: Old Wine and New Wine-skin?

• Author: Lei Zhang - Kelly K. Shang
• Position: Dean of WTO Chair Institute?China; Dean of School of Trade Negotiations, and Director of Shanghai Centre for Global Economic and Trade Governance, Shanghai University of International Business and Economics. Ph.D. (SUIBE). The author may be contacted at: wtozhanglei@suibe.edu.cn /Address: 620 Gubei Road, Shanghai 200336 P.R. China. - Lecturer...
• Pages: 31-43

Lei Zhang

∗

& Kelly K. Shang

∗∗

As goods and services powered by AI continue to proliferate, scholarly opinion seems

to consider that current WTO law is insufficient to regulate trade in AI-powered

products. The following reasons can help explain this perceived insufficiency of the

WTO law: (a) AI-powered products are difficult to categorise within the perceived

goods/services dichotomy under WTO law, thus causing uncertainties as to the

applicable legal regime; and (b) the WTO law has yet to respond to the need for national

governments to strike a balance between trade and controversial trade practices

regarding AI-powered products. This paper argues that while current WTO law is

far from perfect, it does partly regulate trade in AI-powered products. The following

observations substantiate the partial regulation of trade in AI-powered products by the

WTO law: (a) AI-powered products cannot escape existing WTO disciplines on trade

in goods and trade in services, by virtue of either the involvement of AI or the perceived

goods/services dichotomy; and (b) efforts to balance trade/non-trade interests associated

with trade in AI-powered products are allowed under the GATT/GATS’ ‘public

morals’ and security exceptions.

Keywords

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∗ Dean of WTO Chair Institute– China; Dean of School of Trade Negotiations, and Director of Shanghai Centre for Global

Economic and Trade Governance, Shanghai University of International Business and Economics. Ph.D. (SUIBE). The

author may be contacted at: wtozhanglei@suibe.edu.cn / Address: 620 Gubei Road, Shanghai 200336 P.R. China.

∗∗ Lecturer at Shanghai University of International Business and Economics; Fellow of the World Trade Institute (WTI) at the

University of Bern. J.D. (St. John’s College, Hong Kong), Ph.D. (Maastricht). The author may be contacted at: kellyshang.

nl@gmail.com / Address: 100 Royal Parade, Melbourne VIC 3000, Australia. She gives thanks to Ms. Rachel R Du, Master

of Advanced Studies in International Law and Economics (MILE) Candidate, WTI for her research assistance.

The WTO Disciplines and

Trade in Products Powered



Old Wine and

New Wine-skin?

J. EAST ASIA & INT’L L. Vol. 12/No.1 (2019); 31-44

Publication type : Research Article

Section : Issue Focus

DOI : http://dx.doi.org/10.14330/jeail.2019.12.1.02