International Trade Law and Global Data Governance

Front matter

INTERNATIONAL TRADE LAW AND GLOBAL DATA GOVERNANCE

ALIGNING PERSPECTIVES AND PRACTICES

STUDIES IN INTERNATIONAL TRADE AND INVESTMENT LAW

Preface

IGITAL TRADE Is everywhere. At the heart of digital trade is the Internet.

As a globally interconnected network, the Internet has facilitated cross-

border data flows and thereby enabled the growth of a gigantic data-driven economy. We are all consumers in this data-driven economy, consciously or unconsciously. Almost every country today is devising grand strategies to maximise economic and, potentially, political benefits from this data-driven economy and eventually fulfil their dream of becoming important players in the global digital economy. More companies and entrepreneurs are now able to offer their products and services online to users across the world. Similarly, consumers now have a wide choice of digital products and services from across the world at competitive prices.

Although the promise of digital trade has created numerous opportunities for economic growth, it is not without its challenges. As this book highlights, the increased ‘datafication’ of our world has created several threats to the integrity and stability of the global economic order. We increasingly see countries engaging in geopolitical conflicts in the technological domain. The last few years have seen a rapid rise in inward-looking domestic regulatory measures, which fragment the global regulatory framework for digital trade. Some of these governmental measures also adversely affect the global network of the Internet and prejudice its seamless connectivity by restricting cross-border data flows. These restrictions are expectedly creating impediments to digital trade. However, governments often implement these measures with seemingly legitimate domestic policy objectives in mind, thus creating a dilemma between liberalising digital trade flows and protecting public policy objectives.

With the datafication of the economy, several transnational and domestic legal and policy concerns have come to the forefront in global data governance. This has motivated governments across the world to take urgent legal and policy actions. The examples of such concerns are endless. Internet users are increasingly at risk of falling prey to cybercrimes and data breaches. Some of the biggest digital technology companies now act as data monopolies and exploit their users, including by illegally surveilling them and creating self-contained digital ecosystems, where individual and group privacy is at risk. Further, governments are seeking control of our data to monitor and shape several aspects of our lives for both good and bad reasons. While all these changes are happening rapidly, a large part of the developing world continues to have limited digital/data infrastructure and regulatory capacity, and thus cannot benefit from the data-driven economy in a meaningful manner.

x Preface

The regulatory and policy problems of our datafied world can be viewed from various disciplinary and ideological lenses. This book explores how international trade law is relevant for our datafied world. It focuses on the rise in governmental measures to regulate and restrict cross-border data flows through the globally interconnected network of the Internet, and its repercussions for both global digital trade and global data governance. In doing so, the book identifies not only how international trade law can discipline unnecessary barriers to cross-border data flows, but also, more importantly, how it can make a meaningful contribution to building a robust, coherent and inclusive global framework for data governance.

We live in a world in which the narrative of data and digital sovereignty is increasingly becoming common in both autocratic and democratic countries. This narrative has the potential to fragment not only the global economic order, but also the technical infrastructure of the Internet. It is against such a complex background that this book seeks to evaluate the role and relevance of international trade law in navigating the complexity of global data governance. In exploring this question, it looks at data regulation and its intersection with trade treaties in light of data protection/privacy, cybersecurity, governmental access to data, bridging the global data divide and competition regulation. While data protection and cybersecurity have long been discussed in the context of data/Internet governance, concerns of data divide, governmental access to data and digital competition are the more recent hot topics in global data governance.

The book provides readers with a cautiously optimistic take on why international trade law continues to be relevant for the data-driven world. It proposes that a shift in perspective and practices can help redefine the relevance of international trade law for the global digital economy. In particular, it emphasises the need to shift the digital trade narrative from conflicts and geopolitical divides to regulatory alignment, digital trust, digital inclusion and meaningful international cooperation. It seeks to build a multilayered framework for global digital trade, taking into account the multidimensional aspects of global data governance and the role of various stakeholders that enable and regulate cross-border digital flows.

This book will be of interest to not only policymakers and experts on digital trade and international economic law, but also a larger audience that wishes to learn more about the intersection of digital trade and data regulation in the modern world. Further, the broader message and policy proposals of the book is applicable in other areas of trade law and policy. While it is framed as a holistic research endeavour to explore the role of international trade law in regulating cross-border data flows, experts outside the field of international economic law may also have specific interest in specific chapters focusing on a particular area of data regulation. In the current digital world in which we seem to accept tech wars, regulatory fragmentation and the data divide as a given,

Preface xi this book is a conscious effort to present ideas for aligning perspectives and practices in international trade law and global data governance.

Neha Mishra Geneva 31 July 2023 xii

Acknowledgements different aspects of digital trade and data regulation that I began at the

start of my doctoral studies in April 2016. While this book develops

several ideas of my doctoral thesis, it ventures into several new topics that I did

not explore in my doctoral research. However, when I trace back the inspiration

of this project, my doctoral thesis is perhaps still the most important foundation of this project.

At the outset, therefore, I would like to thank my PhD supervisors, Prof

Tania Voon and Prof Andrew D Mitchell, for their unwavering support, and

providing me with invaluable guidance, mentoring and encouragement through-

P | {HIS BOOK Is a culmination of several years of thinking and research on out my academic career. Further, I benefited from various other inputs during my doctoral studies, especially from Prof Margaret Young as the internal commentator. I learnt immensely from my visiting fellowships at the WTO and Max Planck Institute Luxembourg, as well as my friends and colleagues at Melbourne Law School.

Several exceptional academics have played an instrumental role in shaping my thoughts and understanding of digital trade and international economic law. In particular, my thesis examiners, Prof Mira Burri and Prof Shin-yi Peng, not only generously provided me with excellent reports on my doctoral research, but since then have also provided extremely helpful feedback and guidance on other papers that have shaped my academic work.

Although the discipline of digital trade law is still emerging, several thought leaders in the field have been a constant source of inspiration for me. In particular, I would like to thank Prof Anupam Chander, who has constantly helped me think differently and innovatively on this subject both through his exceptional research and through inputs on different pieces of scholarship that I have written. Over the years, several academics and experts in the field have selflessly provided me with inputs at numerous conferences and workshops. While it is impossible to name everyone, my academic development would not have been possible without them.

A large part of this book was conceptualised while I was working as a lecturer at Australian National University (ANU) in Canberra in 2021-22. My colleagues at ANU provided me with helpful advice regarding publishing a monograph. I wrote most of this book during my time at the Geneva Graduate Institute in both 2022 and 2023. During this time, I benefited immensely from the rich academic culture at the Institute and the generous support and guidance of my colleagues, especially at the Department of International Law, for which I am extremely xiv Acknowledgements grateful. I am also extremely grateful to the Swiss National Science Foundation for funding the open access publication of this monograph. A special note of thanks to Binit Agarwal for providing me with invaluable research assistance for this book project. Finally, this book would not have been possible without the support of the series editors of international economic law at Hart Publishing, as well as Roberta Bassi, Verity Stuart and Linda Goss. I am grateful to them for the opportunity and their support in publishing this work.

On a more personal note, I thank the four most important teachers in my life: my grandparents, Aai and Aja, and my parents, Bou and Nana. They have unwaveringly stood by my side and believed in me more than I ever could. Finally, I cannot end this note without thanking Prajat, who has been lovingly and patiently by my side in my life journey and has always encouraged me to be the best version of myself in everything that I do.