Will Asia-Pacific Trade Agreements Collide with EU Adequacy and Asian Laws?

Abstract

In Asia and the Pacific, two levels of ‘free trade agreements’ (FTAs) are operating to limit the scope of data export restrictions, and to prevent enactment of data localisation requirements, They have implications for relationships between Europe and the Asia-Pacific region. On the one hand, the multilateral CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) contains such restrictions, and has become more relevant because the UK has made clear its desire to accede to it. Other multilateral agreements and proposals in the Asia-Pacific contain different versions. Restrictions on data localisation are even stronger in the trilateral US - Mexico - Canada FTA (USMCA), and may influence other agreements involving the US. At the same time, bilateral FTAs involving various Asia-Pacific countries, including Singapore, Japan, Australia and Sri Lanka, and proposed for the United Kingdom, also include provisions on data exports and data localisation. This article focuses on these Asia-Pacific agreements, the extent to which they are consistent, and their possible relationship with EU adequacy decisions. There are complex issues raised for the EU itself by its adequacy requirements for data exports, and the resulting tensions between the EU’s constitutional obligations under the EU Charter, and its obligations under GATS article XIV(c)(ii), but these are not the focus of this article.