Applying WTO and FTA Disciplines to Data Localization Measures

Abstract

AbstractThe last decade has seen a proliferation of measures requiring data to be stored within national borders. Such restrictions, known as ‘data localization measures’, disrupt digital trade and run counter to the borderless reality of the internet. But the effectiveness of existing WTO rules to adequately discipline data localization measures remains inconclusive. In the absence of meaningful progress at the multilateral level, FTA negotiations are developing new models to address such barriers. This article compares how data localization measures would be disciplined under the General Agreement on Trade in Services (GATS) and theComprehensive and Progressive Agreement for Trans-Pacific Partnership(CPTPP) framework. It argues that the CPTPP represents a significant advance on the GATS and strikes an appropriate balance between facilitating businesses’ growing need to transfer and store data across national borders while preserving governments’ right to regulate in the public interest.