Data governance and international trade law: exploring paths towards convergence

Extract

Data have become so essential to economic processes that it is said to be the ‘new oil’.¹ While this is not entirely a valid statement,² it illustrates well the centrality of data, as with other factors of production such as natural resources and human capital, modern economic activity, innovation, and growth cannot occur without data.³ In the context of trade and trade policies, the growing importance of data has had one crucial implication: data must flow across borders. Otherwise, many of the innovations of the data economy and things that we have become accustomed to in everyday life, such as apps, the provision of digital products and services, cloud computing, or the Internet of Things, would plainly not function.⁴ The interdependence between cross-border data flows and digital innovation is critical also for the future—for instance, the development of artificial intelligence (AI) hinges on data inputs.⁵ This interdependence puts trade policy under pressure and demands solutions. These are by no means easy, however, as the use of data opens many regulatory questions pertaining to data sovereignty—that is, how different states navigate the fluid data environment⁶ and ensure the protection of privacy, national security, and other domestic values and interests.⁷ These concerns have led to the erection of a palette of diverse trade barriers, including measures that localize the data in the territorial bounds of the state.⁸ These measures, even if justified and of non-discriminatory nature, do impede a seamless data economy and come at a cost for businesses and countries.⁹ The interfaces between data governance and international economic law have become critical in this sense, and there is an urgent need for apt regulatory toolboxes to manage the inherent tensions and balance the trade-offs. It is this daunting task that Neha Mishra, a professor at the Geneva Graduate Institute, Switzerland, takes up in her book International Trade Law and Global Data Governance: Aligning Perspectives and Practices.¹⁰