[Roshni Ranganathan, V year student at Gujarat National Law University,
Gandhinagar writes about how WTO may not be the best forum for disputing data protection given the present system in existence. ]

Abstract

In 2013, United States received a report that revealed cyber attacks by the Chinese military on U.S. companies to steal their trade secrets in order to provide leverage to domestic Chinese companies. The legal recourse available to states in such circumstances is unclear and thus, requires some discussion. Stealing of trade secrets to provide some competitive advantage to one’s own companies can be understood to mean commercial or economic cyber espionage. No international treaty governs economic espionage specifically but a basic protection to trade secrets and other intellectual property is provided through the World Trade Organization’s (WTO) Agreement on Trade Related Intellectual Property Rights (TRIPS)2, which can be extended to protect the confidential data of the companies which gives them the trade advantage. Keeping this in mind, the author seeks to analyse the possibility of litigating commercial cyber espionage complaints through the WTO Dispute Settlement Body (DSB) as a TRIPS violation and as a non-violation complain. These concepts are explained through the above case study of United States and China with respect to alleged acts of economic cyber espionage by China on U.S. By applying the relevant provisions of TRIPS and GATT 1994, the author will establish that among the few alternatives that are available to the United States for addressing and adjudicating commercial cyber espionage, WTO may not be the best forum for disputing data
protection given the present system in existence. In order to serve as an adjudicatory forum, WTO must reconsider its existing mechanism to either modify TRIPS or formulate a new agreement that specifically addresses cyber espionage issues in trade.