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The Keynote of Korea’s Trade-friendly Digital Platform Regulation at the Outset of EU’s New Legislation ICT economy, electronic commerce

Author Han-Young Lie, Byung-Kyu Kwon, and Seong-Min Cha Series 21-01 Language Korean Date 2021.12.20

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   This study aims to present policy suggestions for Korea’s digital platform regulation with particular focus on the EU’s recent drafts of the Digital Services Act (DSA) and Digital Market Act (DMA). The former is a social regulation to promote a transparent and safe online environment, while the latter is an economic regulation to prevent potential anticompetitive conducts by so-called “gatekeepers.”
   Chapter II of the study examines the distinctive characteristics of digital platforms from an economic standpoint. Chapter III analyzes the details of the DSA and DMA, including their compatibility with GATS. Chapter IV looks over the main contents, characteristics and structure of Korea’s laws and regulations on digital platforms, including those under parliamentary discussion. Chapter V and VI seek to put forward takeaways for Korea’s digital platform regulation, evaluating its policy space vis-a-vis trade obligations.
   Key policy suggestions are as follows. First, careful consideration must be taken of the pros, cons, and probable consequences involved when switching from ex-post regulation to an ex-ante regime. Seldom advisable is to rely heavily on ex-ante regulation. Second, benchmarking foreign law or legislation drafts should answer the respective regulatory purpose. For instance, it is not appropriate to refer to the DSA instead of the DMA when dealing with anticompetitive conducts of digital platform. Third, the definition of “gatekeeper” within the DMA is conceptually no better than a market-dominant digital platform equipped with quasi-essential facilities. This kind of approach could entail quite a trade risk, since it lacks international consensus building at the moment. Finally, Korea should be ready for potential trade conflicts in the near future over its digital platform regulation. A highly possible case would be de facto breach of national treatment obligation. In this respect, there is an urgent need to address how to harness exceptional rights of defense embedded in trade agreements such as GATS.

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