Data Protection and Data Protectionism in International Trade

Cross-border data flows, which encompass a broad and diverse range of economic and non-economic dimensions, raise a number of new trade policy issues. However, as the status of data and data flows in International Economic Law remains ill-defined, no effective multilateral governance is currently exercised with respect to the digital transformation of trade. Notably, the proliferation of national data governance frameworks is a critical element for regulating trade in the digital economy, but one that receives only limited consideration under WTO law. As digital globalisation accelerates, a patchwork of country-specific data governance frameworks threatens to fragment the global data sphere and thus increase barriers to digital trade. The debate on transnational data governance is particularly pronounced with regard to data privacy laws, as these are a common element of domestic data governance and the global landscape of data privacy regulations is characterised by considerable heterogeneity. As a result, the impact of national data privacy laws on the cross-border flow of personal data is one of the most contentious issues associated with digital trade. This chapter provides an in-depth examination of the regulation of data flows through data privacy rules and explores the rationale behind a contemporary data privacy collision in digital trade.