Digital Megaregulation Uncontested? TPP’s Model for the Global Digital Economy

Streinz, Thomas

doi:10.1093/oso/9780198825296.003.0014

Cited by 13 publications

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“…23 Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information, [2019] OJ L 76/1. 24 Streinz (2019), p. 335. See Sect.…”

Section: Development In the Mega-regional Trade Agreementsmentioning

confidence: 99%

Restrictions on Data Transfers and Trade Agreements

Naef

2022

European Yearbook of International Economic Law

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In reaction to the stalemate in the multilateral trading system, international governance of digital trade has gradually shifted toward bilateral and regional trade agreements. This allowed countries to start to regulating cross-border flows of personal data outside the WTO framework. The first section of this chapter traces the development of data flow clauses in the trade agreements of the EU, the US, and other countries. It also looks at the negotiations of the big trade agreements in the late 2010s, such as the TTIP, the TiSA, and the TPP (Sect. 5.1). The second section outlines the scope for data flow clauses in the trade agreements of the EU based on different legal requirements stemming from the architecture of EU law, the GDPR, and other regulations. These requirements include the primacy of fundamental rights over international law with regard to the right to continuous protection of personal data in Article 8 CFR, the accommodation of the legal mechanisms for the transfer of personal data in the GDPR, the inclusion of cooperation mechanisms on the basis of Article 50 GDPR, and the ban of data localization requirements beyond data protection and privacy concerns. These legal requirements are necessary to consider when drafting data flow clauses for EU trade agreements (Sect. 5.2). The third section of this chapter offers and analyzes four potential designs for data flow clauses for EU trade agreements (Sect. 5.3). The fourth section is dedicated to the analysis of the EU model data flow clauses that the European Commission introduced as a template for future trade negotiations in 2018 (Sect. 5.4).

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Section: Development In the Mega-regional Trade Agreementsmentioning

confidence: 99%

Restrictions on Data Transfers and Trade Agreements

Naef

2022

European Yearbook of International Economic Law

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“…Some WTO members present their opinions on the definition in a slightly different manner: the European Union (EU), for instance, focuses more on the economic dimension rather than on the legal one, upholding the notion of technological neutrality as 'the need for a similar treatment of economically comparable transaction independently from the technology used'. Taking into account all the opinions presented above, in this article we understand the principle of technological neutrality to mean simply that all laws and regulations should have the same application to trade in the same services regardless of the means of delivery (see, for a similar definition on the principle of technological neutrality, Hu, 2014;Streinz, 2019). In this sense, the principle of technological neutrality should be distinguished from network neutrality or flexibility in the choice of technology.…”

Section: Definition Of Technological Neutralitymentioning

confidence: 99%

No More Strategical Neutrality on Technological Neutrality: Technological Neutrality as a Bridge Between the Analogue Trading Regime and Digital Trade

Kwak

2021

World Trade Review

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The World Trade Organization (WTO), a unique multilateral trading regime, has failed to establish its relevance to the digital nature of trade. This article revisits the ‘principle of technological neutrality’ to make the cross-border supply of services by electronic means subject to the current rules-based trading regime. I argue that the principle of technological neutrality could help resolve a number of thorny legal issues: confirming the applicability of the General Agreement on Trade in Services (GATS) rules to the delivery of services by electronic means; providing a guideline to determine the likeness of services in the era of digital trade; and backing up an evolutionary approach to interpreting the GATS schedules of commitments. However, the WTO adjudicatory bodies have been reluctant to rely on the principle of technological neutrality, which is referred to as strategic neutrality in this article. This article urges the WTO adjudicatory bodies to abandon their strategically neutral position on technological neutrality immediately. It also explores ways to incorporate the principle of technological neutrality into the world trading system at the bilateral, plurilateral, and multilateral levels.

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“…Nevertheless, Greenleaf (2020b) considers that the agreements with CPTPP-inspired clauses create a great likelihood of inconsistency and conflict with the EU adequacy requirements of export limitations and the increasing number of Asian data privacy laws with broad mandates for data localisation. Streinz (2019) argues that the CPTPP parties endorsed the Silicon Valley Consensus of uninhibited data flows and permissive privacy regulation (which the USA incorporated in the TPP) due to a lack of alternatives and persistent misperceptions about the realities of the global digital economy, partly attributable to the dominant digital trade framing. He suggests the need for a new approach for the inclusion of data governance provisions in future FTAs that offers more flexibility for innovative digital industrial policies and experimental data regulation.…”

Section: New Developments In Asia-pacific Trade Agreements Concerning...mentioning

confidence: 99%

The Regulation of personal data flows between the European Union and the Asia-Pacific Region

Marcén

2021

ANZJES

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This paper explains the legal framework for cross-border transfers of personal data outside the EUand assesses its impact on a selection of Asia-Pacific data protection laws. It studies the positiondefended by the EU in the debates for a new general framework on e-commerce in the World TradeOrganization (WTO) and the sections regarding data flows of some free trade agreements recentlyconcluded by Asia-Pacific countries such as the Regional Comprehensive Economic Partnership andthe Comprehensive and Progressive Agreement for Trans-Pacific Partnership. This paper shows howthe regulation of data flows has surpassed national data protection laws to be increasingly present infree trade agreements with the tensions this may entail, paying special attention to the EU and Asia-Pacific. A holistic view is necessary because the consequences for human rights in trade negotiationsshould not be overlooked.

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Digital Megaregulation Uncontested? TPP’s Model for the Global Digital Economy

Cited by 13 publications

References 0 publications

Restrictions on Data Transfers and Trade Agreements

Restrictions on Data Transfers and Trade Agreements

No More Strategical Neutrality on Technological Neutrality: Technological Neutrality as a Bridge Between the Analogue Trading Regime and Digital Trade

The Regulation of personal data flows between the European Union and the Asia-Pacific Region

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