International Trade Law in the Age of Data Securitization: Beyond Exceptions, Toward Cooperation

Current Situation and Prospects of International Regulations on the Cross-border Flow of Personal Data

The paper provides three specific arguments in support of the two key claims to promote an interface between data protection and digital trade law. It engages in the current academic debate among scholars to understand the role of digital trade law in coordinating the regulatory thicket of national data protection regulations (NDPRs) among states. In pursuance, it proposes a rebuttal to the critique that digital trade law is fundamentally ill-suited to engage in data protection policy debates. The paper argues that data protection and digital trade law cannot remain in separate silos as they both are fundamentally intertwined with the governance of cross-border flow of personal data. Data protection issues should form an indispensable consideration in the context of digital trade liberalisation and vice versa. The paper concludes that the standards regime in international trade law can be considered as a blueprint for the necessary regulatory interface between data protection and digital trade. The paper consists of five main sections. This introduction is the first section. The second section titled ‘Interconnected structural blocks of a data protection regulation in general’ provides the general structural elements of a data protection regulation and how the data protection principles and practices combine to actualise the mechanisms which govern the cross-border flow of personal data in a jurisdiction. It highlights that the structural elements of a data protection regulation are interconnected, which necessitates policy coherence between data protection and digital trade law. The third section titled ‘Three arguments against and in favour of an interface between data protection and digital trade law’ provides an outline of the critiques by Irion, Kaminski and Yakovleva to the proposals by Chander and Schwartz to promote a legal interface between data protection and digital trade law. Notably, it provides a rebuttal to the critiques by supporting the proposals by Chander and Schwartz. It supports the proposal for an international agreement on data privacy among states in the future which can bring coherence in the governance of cross-border flow of personal data. The fourth section titled ‘Future interface between data protection and digital trade law’ underscores the need for a self-standing agreement on data privacy in the context of international trade law. This is due to the fact that traditional trade law approaches need readjustment to cohesively tackle the realities of digital economy, especially data protection issues. In pursuance, it proposes that the trade standards regime, ie the Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary (SPS) Agreement in the World Trade Organization’s (WTO) provide a unique blueprint to envision a self-standing legal agreement and forum on data protection concerns as it relates to cross-border flow of personal data in international trade law. The section briefly highlights the relevance of the WTO trade standards regime as a blueprint for the future international data privacy agreement in international trade law. The fifth section concludes the paper by raising two key challenges for a policy coherence between data protection and digital trade law — (a) progressive coordination and (b) a reasonable legal interface between the two regimes in both theory and practice.

This open access book examines how international trade agreements apply to domestic regulations on cross-border data flows and then proposes a multilayered framework to align international trade law with evolving norms and practices in global data governance. Digital trade and global data governance are at a unique crossroads, raising significant policy challenges. The book focuses on five policy areas at the interface of digital trade and global data governance: privacy, cybersecurity, governmental access to data, data divide, and competition. In five separate chapters, the book analyses how different types of domestic laws in each of these policy areas interface with existing provisions in international trade law. Thereafter, each of these chapters explores the challenges and possibilities for aligning international trade law with evolving norms, standards and best practices in that specific area of data regulation, both at the domestic and transnational level. Drawing upon these findings, the final chapter proposes a multilayered framework for aligning international trade law with evolving norms and practices in global data governance. The key message of the book is that international trade law can and should meaningfully align with and contribute to the development of transnational data governance norms and practices. It can also foster robust regulatory cooperation among various stakeholders of the digital economy. As the book offers a broad perspective on the significance of digital trade rules in a datafied world, it will benefit scholars, practitioners and policymakers working on digital trade and data regulation, helping its readers explore fresh avenues in the future development of digital trade rules. Studies in International Trade and Investment Law: Volume 31

This chapter discusses the ILA Resolution on International Trade Law and Human Rights as submitted by ILA's International Trade Law Committee (ITLC) to the 73rd ILA Conference at Rio de Janeiro and approved, in a duly revised and shortened text, by ILA in August 2008. As international trade and trade law are mere instruments for enabling citizens to satisfy human demand for scarce goods and services through mutually beneficial cooperation among citizens across frontiers, promoting mutual consistency of international trade law and human rights is important also for poverty reduction and for strengthening the moral and democratic legitimacy of international law. The ITLC proposals for elaborating an ILA Resolution on International Trade Law and Human Rights focused on legal and judicial remedies in the field of international trade, with due respect for diverse constitutional traditions regarding regulation of human rights and economic freedom in national and international trade law. Keywords: human rights; international law; International Law Association (ILA); international trade law; International Trade Law Committee (ITLC); Rio de Janeiro Declaration

International Trade, Internet Governance and the Shaping of the Digital Economy

This chapter introduces the building blocks of the problem of reconciling European personal data privacy framework and international trade law discussed in this book. Against the background of expanding international trade law rules on cross-border data flows, on the one hand, and strengthening of the fundamental rights protection for personal data in the European Union (EU), on the other hand, this chapter explains why data protection is an international trade law issue. The tension between restrictions on cross-border data flow under the General Data Protection Regulation (GDPR) and the EU’s commitments under the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO) can pull in opposite directions. This chapter illuminates why this tension may result in a clash between the EU Charter of Fundamental Rights and the GATS. Finally, this chapter sets out the EU’s approach to regulating cross-border data flows in recent digital trade agreements and ongoing trade negotiations.

Restrictions on Cross-Border Data Flows: A Taxonomy

This study examines China's broad application of the national security exception governing cross-border data flows. We trace the development of the exception from being the "constructive ambiguity" in the General Agreement on Tariffs and Trade (GATT) Article XXI exception, to an exception subject to limited judicial review. By examining the distinctive Chinese legal framework on data flows enforced through its Cybersecurity Law, Data Security Law and Personal Information Protection Law (PIPL), we identify a Chinese legal concept of "data sovereignty." A case study of the Didi Chuxing cybersecurity review serves to illustrate how this state-centric regulation of data flows works in practice. In light of the EU's rights-centric and US's power-centric normative approach to data flows, China's legal safeguards for cross-border data flow reveal fundamental tensions in global data governance. We argue that, while internally coherent, the Chinese approach creates serious uncertainty for multinational firms, challenges global norms of international trade law and is a leading contributor to the phenomenon of "digital decoupling".

The intelligent and connected vehicle industry is a key component of the digital economy. The data collected during vehicle operation contains a significant amount of critical information, and its leakage or tampering in cross-border data flow scenarios can result in severe security incidents. China implements a data classification and grading management system; however, current challenges such as subjective classification criteria and dynamic adjustment persist. This paper analyzes the developmental trends of global data flow policies and further explores the difficulties in data classification and grading, such as contextual dependency and data quality. Focusing on cross-border data transfer in vehicles, this study proposes a data nature and quality analysis framework. By conducting a layered analysis of data nature (foundation layer, functional layer, informational layer, and risk layer) and evaluating data quality (identifiability and temporality), the framework provides a quantitative assessment method for governing cross-border vehicle data flows.

With the development of cross-border e-commerce's integration with the global economy, the cross-border data flow is playing an increasing important role in international economy and trade, and the smoothness of it directly or indirectly affects the improvement of the digital economy. Many countries or regions have established their own legal regulation systems for outbound data. Now China is the largest retail export economy in cross-border electronic commerce in the world, it application to join the Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP) is not smooth, and its data cross-border rules are quite different from CPTPP clauses, so it is difficult to align with them. Among them, the security assessment of outbound personal data flow system currently implemented in China is a major factor that makes connecting the cross-border personal data flow rules of China with CPTPP cross-border personal data flow clauses more difficult. By comparing this system in China with the cross-border personal data flow regulation system in the United States and the European Union, as well as the relevant provisions of CPTPP, this paper points out that there are some problems in this system in China, such as vague definition of the basic concept "important data" and excessive burden on data processors, and puts forward some legislative improvement measures to solve these existing problems, such as clarifying "important data", constructing a classification and grading system for cross-border data flow, and reshaping the distribution system of compliance responsibility for safety assessment.

Regulatory Space in International Investment Law and International Trade Law

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

Promoting Coherence between PTAs and the WTO Through Systemic Integration

Promoting Coherence between PTAs and the WTO through Systemic Integration