The EU as an Intentional or Accidental Convergence Actor? Learning from the EU-Japan Data Adequacy Negotiations

International Trade Law and Regulation 2020 Volume 2

9 Pages Posted: 15 Jun 2020

See all articles by Elaine Fahey

Elaine Fahey

City, University of London - City Law School

Isabella Mancini

City, University of London

Date Written: May 20, 2020

Abstract

The EU increasingly sets new international agendas, standards and rules and is referred to in a vast literature as a ‘norm promoter’. An increasingly explicit endeavour of the EU is to drive global data convergence. The EU now has data transfer regimes which count as some of the largest in the globe and this article focuses upon how the EU and Japan have recently agreed on a reciprocal recognition of the adequate level of protection, which is said to create the world's largest area of safe data flows.

The recent EU-Japan adequacy decision represents an another significant global endeavour, ostensibly creating global reach. This innovation is worthy of reflection given the scale of data transfer involved, but most importantly to study the assessment of “equivalence” of two legal orders, and the processes of convergence and institutionalisation at play. We contend that it is of significance and an important coincidence that the adequacy decision was a side-product of the EU-Japan Economic Partnership Agreement (EPA): despite the EU’s initial goal of excluding data from the trade negotiations, Japan insisted on data dialogues and the EU eventually accommodated the demands, hence triggering the process for an assessment of equivalence. This process is of interest given the scale of the agreement but also the broader parameters of how a partner proposes a field not aligning with EU interests and ends up becoming subject to significant EU institutionalisation procedures. The EU-Japan efforts at reaching convergence provide a unique setting to study the EU as an emerging global legal actor in data.

How do we understand then the EU as a global actor in data and its efforts and willingness to be so? How does the EU nudge convergence more or less intentionally towards its own standards? Alternatively, which mechanisms make convergence happen as a result of “unintended consequences” as opposed to a more ‘hard’ power of the EU? What lessons do we learn from the adequacy decision negotiations as to the EU as a global data convergence actor? We argue that convergence and institutionalisation appear as outcomes of the EU accepting to engage in data dialogues with Japan, thus resulting in ‘accidentality’ of ending up with negotiating an adequacy decision with Japan. The convergence and institutionalisation are important outcomes of the EU and Japan efforts to reach a mutual adequacy decision and resonate with how we understand the EU as a global convergence actor. We argue that convergence and institutionalisation are important ‘accidental’ outcomes of the adequacy decision and show the EU to be a flexible global trade actor.

Keywords: EU-Japan Adequacy decision, Data transfer, Data flows, EU-Japan EPA, Convergence, Institutionalisation

JEL Classification: K00, K2, K33

Suggested Citation

Fahey, Elaine and Mancini, Isabella, The EU as an Intentional or Accidental Convergence Actor? Learning from the EU-Japan Data Adequacy Negotiations (May 20, 2020). International Trade Law and Regulation 2020 Volume 2, Available at SSRN: https://ssrn.com/abstract=3606087 or http://dx.doi.org/10.2139/ssrn.3606087

Elaine Fahey (Contact Author)

City, University of London - City Law School ( email )

Northampton Square
London, London EC1V OHB
United Kingdom

Isabella Mancini

City, University of London ( email )

London, EC1V OHB
United Kingdom

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