디지털 무역협정의 ‘정당한 공공정책 목적(LPPO)’ 예외의 의미와 쟁점

The recent proliferation of digital trade agreements in the Asia-Pacific region has resulted in digital trade rules of various formats and liberalization levels, thus contributing to the elimination of digital trade barriers. However, at the same time, the exceptions provisions, which are introduced together with the mandatory provisions for facilitating digital trade, also serve to address concerns associated with the growth of digital trade and to guarantee domestic regulatory rights of participating countries. Digital trade rules contain such exceptions as the ‘legitimate public policy objectives (LPPO)’ exceptions, in addition to the general exceptions and security exceptions clauses, which are in place to serve as a safety net in dealing with new forms of transactions and means of delivery in trade. As the LPPO exceptions are included in the digital trade agreements in the form of an exception clause, the mandatory principle of digital trade facilitation may need to be restricted to the minimum. To this end, the LPPO exceptions are limited in its application by the ‘necessity’ requirement, ‘chapeau’ requirement, and the ‘proportionality’ requirement. The general exceptions in digital trade agreements are also incorporated in various ways, while the security exceptions in general provide sufficient discretion for governments to restrict digital trade based on national security reasons. Such fragmentation of rules in the digital trade area is expected to serve as a stumbling block to the facilitation and growth of digital trade in the long term. In particular, the intensifying fragmentation of exceptions provisions is highly likely to weaken the level of liberalization achieved so far, calling for efforts to harmonize rules. Not only are the LPPO exceptions incorporated in various formats, but the exceptions are applied in linkage with the general exceptions provisions in the digital trade agreements, which have different coverage specified in the agreements. This leads to concerns about the practical utilization of the LPPO exceptions in digital trade rules. Furthermore, in order to prevent the abuse of the security exceptions clause, there needs to be efforts to harmonize the LPPO exceptions with the security exceptions, and look for more reasonable ways to incorporate and apply security exceptions under digital trade rules.