Privacy and/or Trade

90 University Chicago Law Review 49 (2023)

87 Pages Posted: 24 Feb 2022 Last revised: 10 Jan 2023

See all articles by Anupam Chander

Anupam Chander

Georgetown University Law Center

Paul M. Schwartz

University of California, Berkeley - School of Law

Date Written: February 18, 2022


International privacy and trade law developed together, but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.

The promise of a global internet, with access for all, including companies from the Global South, is increasingly remote. This Article uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions to the current conflict. It proposes a Global Agreement on Privacy enforced within the trade order, but with external data privacy experts developing the treaty’s substantive norms.

Keywords: trade law, information privacy law, European Union law, comparative law, cyberlaw

JEL Classification: K2, K22

Suggested Citation

Chander, Anupam and Schwartz, Paul M., Privacy and/or Trade (February 18, 2022). 90 University Chicago Law Review 49 (2023), Available at SSRN: or

Anupam Chander

Georgetown University Law Center ( email )

Washington, DC


Paul M. Schwartz (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall #7200
Berkeley, CA 94720-7200
United States

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