WTO Law and Cross-Border Data Flows

Laws

In modern international competition and cooperation, digital trade rules centered on the cross-border flow of data have become a competitive advantage for countries. Under the guidance of commercial freedom, the United States chooses to actively promote the free flow of data across borders. The European Union has placed the protection of personal data rights before the cross-border flow of data through the General Data Protection Regulation (GDPR), and developing countries generally reserve space for industry policy interpretation. As one of the world’s largest economies, facing the needs of domestic industrial development and the pressure of international systems, China’s cross-border data flows’ policy is to ensure data flows under the premise of security, protection of personal information, seek international coordination of rules, and the freedom of transmission. The key question, therefore, is how to facilitate interoperability or find a middle ground among the divergent approa...

World Trade Review, 2015

Policymakers are faced with similar tough choices about information (or data) flows. On the one hand, they want to encourage the flow of information across borders in the interest of commerce, education, technology, and scientific progress. On the other hand, at times government officials need to restrict the free flow of information in order to achieve important policy objectives such as preventing spam, piracy, and hacking as well as protecting national security, public morals, and privacy. In addition, policymakers must find ways to ensure that the rules governing cross-border information work effectively across nations and systems, reflecting the ideal of the global interoperable Internet) 2 . Policymakers can indirectly or directly restrict information flows either by changing national policies and laws or by regulating online service providers Birnhack and Elkin-Koren, 2003: 7, 24-26).

A number of legislative frameworks and policies exercise various constraints on access to the Internet for certain goods, services, and other content. Some of these are recognized by most, if not all market participants as legitimate (data protection laws, measures to combat fraud, as well as the enforcement of intellectual property rights), whereas others are seen as merely disguised protectionism (onerous and/or opaque registration or licensing rules and the heavy-handed application of censorship policies to name just two). This paper discusses the use that is increasingly being contemplated or made of trade rules, particularly WTO disciplines, to tackle those constraints that are viewed as either disguised protectionism or a breach of WTO commitments. It discusses the scope of these rules, the uses they have been put to in order to pry open services markets up to now, and the likely limits of their application. It also looks at how those interests most concerned with exporting goods and services via the internet have recognized the limits posed by existing trade rules - at least implicitly - and how they are seeking to address these shortcomings by drafting new rules, either at the WTO or in fora such as bilateral and plurilateral trade agreements.

This article examines the debate over digital trade and human rights, published in World Trade Review

International Journal of Law and Information Technology, 2017

Laws requiring data to be hosted within a particular jurisdiction tend to upset existing ideas about how the Internet should work. Some countries, particularly the USA, have labelled such laws as trade barriers. Other countries, such as Russia and China, have claimed they are pursuing legitimate strategies to protect their citizenry. With a particular focus upon the BRICs, this article aims to make an original contribution to this discourse by synthesizing insights from the disciplines of international trade law and internet governance to analyse and separate the rhetoric from the reality of these competing claims. Drawing upon evidence from information leaked by Edward Snowden about the activities of the US National Security Agency, the article argues that underlying these tensions is the battle to retain or reduce the comparative advantage the US has historically enjoyed in economies of scale for its Internet signals intelligence capabilities. Underneath the debate over trade issues, this article argues that data localization laws are being supported by some countries not only as a means to reduce their comparative disadvantage in Internet data hosting, but also to reduce their comparative disadvantage in Internet signals intelligence.

The transfer of data across borders supports trade in most service industries around the world as well as the growth of traditional manufacturing sectors. However, several countries have begun to adopt laws impeding the cross-border transfer of data, ostensibly in pursuit of policy objectives such as national security, public morals or public order, and privacy. Such domestic measures create potential concerns under both international trade law and international investment law. Accordingly, recent trade and investment negotiations such as the Trans-Pacific Partnership Agreement (TPP) include specific provisions mandating the permissibility of cross-border data transfer and prohibiting data localization in certain circumstances. Although World Trade Organization law contains no such specific provisions, restrictive data transfer measures could breach the non-discrimination and market access disciplines under the General Agreement on Trade in Services (GATS), except to the extent that they are justified under the general exception in GATS art. XIV. International investment law may also apply to measures restricting data transfer, particularly if investment arbitrators take into account holistic changes in the digital economy to interpret the scope of covered investments and the meaning of investment obligations. The application of general trade and investment law disciplines to data transfer restrictions and localization requirements * The authors would like to thank Neha Mishra for her extensive research assistance, Jane Kluske for helpful research assistance and comments in the initial stages, Gary Horlick and Tania Voon for their insights, and the participants of the 'Regulating Cross-Border Transfer of Data' conference held at the Faculty of Law, University of Basel on 7 April 2016 for their comments.

China and Globalization, 2021

Data governance and the management of global digital data flows pose immense challenges for global governance. International digital data agreements must be embedded in revisions of the global "rules based" order that emerged out of Bretton Woods in the aftermath of World War II to manage global economic issues. In that spirit, the countries that value a rules-based global digital economy need to come together to enact new global data management rules. It is becoming more and more critical to treat data as the key driver of today's global economy. Creating new rules will require policymakers to alter their current approaches, which have led to a stalemate in making progress on frameworks for the global internet. China should revise its restrictive approach so that it can play a more constructive role in debates and negotiations between like-minded countries. On China and internet rules, if the Chinese Government retains its restrictive approach to data, AI, and digital trade, it will increasingly find itself excluded or marginalized in global discussions on digital issues. Many other countries see the Chinese approach as far from the baseline of emerging global norms and as self-serving for China from a trade perspective. Keywords Data governance • Management of global digital data • Global governance • Global "rules based" order • Bretton Woods • Rules-based global digital economy • New global data management rules • Global internet frameworks • China and internet rules

Herein, we examine how the United States and the European Union (the EU) use trade agreements to advance the free flow of information and to promote digital rights online. In the 1980s and 1990s, after US policymakers tried to include language governing the free flow of information in trade agreements, other nations feared a threat to their sovereignty and their ability to restrict cross-border data flows in the interest of privacy or national security. In the 21st century, again many states have not responded positively to US and EU efforts to facilitate the free flow of information. They worry that the US dominates both the Internet economy and Internet governance in ways that benefit its interests. After the Snowden allegations, many states adopted strategies that restricted rather than enhanced the free flow of information. Without deliberate intent, efforts to set information free through trade liberalization may be making the Internet less free. Finally, the two trade giants are not fully in agreement on Internet freedom, but neither has linked policies to promote the free flow of information with policies to advance digital rights. Moreover, they not agree as to when restrictions on information are necessary and when they are protectionist.