Data Localization Measures and International Economic Law:How Do WTO and TPP/CPTPP Disciplines Apply to These Measures?

Yoshinori Abe
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Yoshinori Abe: Professor, Faculty of Law, Gakushuin University

Public Policy Review, 2020, vol. 16, issue 5, 1-29

Abstract: Remarkable development of the data economy and growing awareness of the importance of data in recent years have driven some countries to strengthen their control over data flow. Measures restricting cross-border data transfer or requiring data to be stored within national borders, such as China’s 2017 Cybersecurity Law, are known as data localization measures. This article argues that these data localization measures may constitute a breach of the market access commitment or the national treatment commitment under the General Agreement on Trade in Services (GATS), while there is a fair possibility that these measures are justified under GATS general or security exceptions. It also shows that the E-Commerce Chapter of the Trans-Pacific Partnership / Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP/CPTPP) is applicable to cross-border data transfer by companies in non-service sectors as well and contains specific provisions concerning cross-border data transfer and location of computing facilities. This means that the TPP/CPTPP established clearer rules than the GATS with respect to data localization measures. However, as the TPP/CPTPP E-Commerce Chapter has specific exceptions for measures implemented to achieve a legitimate public policy objective, such exceptions could provide broad justification for data localization measures.

Date: 2020
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