The Governance of Data and Data Flows in Trade Agreements: The Pitfalls of Legal Adaptation

Abstract

The rise of the data economy dominates many of the contemporary policy debates. One specific aspect that is often overlooked is the impact of trade law. The present Article seeks to fill this gap by exploring the relevance of international trade rules for data and cross-border data flows. It asks whether and how trade law has deliberately reacted to the increasing importance of data flows, as well as to the increasing difficulty of controlling them for the sake of protecting vital public interests. The inquiry starts with the law of the World Trade Organization (“WTO”), illustrating its effects, as well as its failed adaptation. The rule framework of free trade agreements, which in many ways compensates the lack of progress under the WTO, is subsequently explored. The analytical focus is on the U.S.-driven free trade agreements and the evolutionary regulatory design for digital trade that these agreements have developed. Specific attention is paid to the Trans-Pacific Partnership Agreement as the most advanced model for electronic commerce so far. The Article compares these developments with experiences of other countries and in other venues. It ultimately assesses the existing governance framework for data flows in international trade forums and shares thoughts on better regulatory models, or at least on the paths that may lead to them.

Keywords: Digital Trade, Data Economy, Data Flows, International Trade Law, WTO, Free Trade Agreements