| The new information technology revolution and digital transformation are sweeping the world,which poses new challenges to international law.Data is a key factor of production in digital economy,which mainly takes the Internet as the vital medium.The openness of Internet makes digital governance naturally face cross-border and international problems.However,the current global digital governance is in the state of “disorder” while the role of international investment law has not been fully explored,which is not in accordance with the growing scale of data assets in international investment practice.Although a few preliminary attempts have been made to protect data assets under the framework of international investment law,they have focused on regulating cross-border data flows per se and lacked rules to directly protect data assets,nor have they undertaken substantive digital reforms of international investment law.In order to adapt to the development of the global digital economy,to effectively protect data assets in international investment,and to promote global digital governance to return to rationality as soon as possible,it is necessary to consider integrating data assets into the protection objects of IIAs and to explore possible responses in international investment law.Scholars have observed that the protection of data assets of multinational enterprises can potentially be achieved by international investment law,but there is an overall lack of systematic and targeted research at home and abroad.In view of this,this article explores the legal issues related to the protection of data assets in the context of international investment law through textual analysis,case analysis,comparative analysis and value analysis.Section Ⅰ elaborates the necessity of data asset protection in the context of international investment law.This chapter first identifies the concept of data asset,pointing out that data asset is a new type of asset,which refers to data and its derivatives owned or controlled by natural persons or enterprises that can realistically or expectedly earn economic benefits,and it is distinguished from databases,information assets and digital assets.Although data assets have not been widely recognized as legal property,and there is debate in theory as to what kind of civil rights they actually belong to,there is relatively broad agreement that there are property rights over data and,coupled with the fact that the controller of the data objectively enjoys the right to use and benefit from it,data can be used as a form of contribution to investment.It is necessary to protect data assets from the perspective of international investment law both in practice and rules.On the one hand,while FDI lightness trend reveals the importance of data assets in international investment,data assets are faced with escalating syber security risks and political risks.Therefore,it is necessary to include data assets into the protection object of international investment law and applying treatment standards of IIAs as the protection.On the other hand,the legal protection system for investors’ data assets is at a preliminary stage of inadequacy,lack of directness and imperfection.It is advantageous to protect data assets under the international investment law because its value of investment protection naturally fits with data asset protection,the plurality of subjects in international investment law gives private investors the right to hold the State directly legally liable,and the system of international investment law consists of international law norms and national law norms,which can provide direct,effective and holistic legal protection for data assets.Section Ⅱ aims to demonstrate the possibility of data assets becoming an eligible investment under the framework of international investment law.From the perspective of the history of international investment capital composition,it sees a generally development trend from single to multiple.IIAs in recent years have adopted restrictions on the definition of investment such as "characteristics of the investment",conformity with the laws of the host country and the establishment of a long-term effective economic relationship,all of which data assets are likely to meet.Data assets meet the classical Salini text in specific scenarios and also conform to the requirements of “legal dispute” and “not sale” under the latest trends in the simplification of economic factors.Due to the non-territorial nature of data assets,not all data assets satisfy the geographical link of “in the host state”,and some controversy has arisen from the view that geographical link is the clear and precise factor for an eligible investment.However,the decisive factor for the foreign nature of an investment is the nationality of the investor and,in terms of arbitration practice,a more flexible approach is usually taken to the identification of intangible assets in relation to factors such as actual use,whether they form a substantial part of the business and whether they are closely related to the investment activity as a whole.With the development of the digital economy,the inappropriateness of traditional territorial links to the new production methods has become more pronounced,i.e.digital companies can access overseas markets and form strong and stable ties with the host country without even establishing any physical presence in the physical space,a form of business that goes beyond international trade in terms of a single sale.In response to this new change,it is timely to revise the meaning of the “in the host state” requirement appropriately,i.e.the incompatibility of some data assets with the“in the host state” requirement does not automatically exclude data assets from the scope of eligible investments,but should also be examined to see whether they have a real and sufficient connection with the host state.Section Ⅲ aims to address the possibility of existing investment rules to achieve the protection of data assets from the perspective of the treatment clauses in IIAs,including examines the application of the expropriation,national treatment,fair and equitable treatment and full protection and security treatment,respectively,and their dilemmas,concluding that the existing rules are inadequate to deal with new types of political risks such as data localization measures,mandatory disclosure of source code and cyber attacks.Therefore,it is necessary to fundamentally and conceptually reform the international investment legal system.The dilemma with the application of the expropriation is that the non-exclusive nature of data makes it manifestly unreasonable to judge the level of material deprivation by the loss of ownership or control in the traditional sense,the difficulty of proving that a cyber attack was state-sponsored due to technical shortages,legal risks and unclear allocation of the burden of proof,and the uncertainty of calculating compensation for expropriation due to the lack of a uniform standard for measuring data assets.The dilemma with the application of the national treatment is that the emerging digital economy is not characterized by widespread and uniform sectoral standard,resulting in a high degree of inconsistency in the identification of “like circumstance”,and uncertainty in the measurement of data assets can lead to a lack of reliable criteria for determining “de facto discrimination”.The dilemma with the application of fair and equitable treatment lies in the contradiction between the frequent legislative activities of the host state’s frequent legislative activities in response to the digital economy and the stability of the investment environment,and the problem of denial of justice can be very common due to the uneven development of the global digital economy.The dilemmas with the application of full protection and security treatment lie in the controversy over whether the host state’s investment protection obligations should extend to non-physical assets and non-physical space,the wide variation and uncertainty in the standards of state responsibility in the area of cybersecurity,and the possible overlap with fair and equitable treatment and the sequence of its application.Section Ⅴ aims to discuss the safeguarding of the host state’s right to data regulation by the international investment exception rules from a perspective of value balance,examining the application of the national security exception,the general exception and the non-conforming measures that may be invoked by host states to exempt data assets protection responsibilities and their dilemmas respectively,and concluding that the existing investment exceptions do not achieve a good balance between the protection of foreign data assets and national security,public interest and commercial interest of host states.The dilemma of the application of the national security exception lies in the ambiguity and self-identification of the clause itself,which makes it difficult to determine whether and to what extent a state’s fundamental security interests include data and cyber security.The dilemma in the application of general exceptions lies in the fact that the emerging personal data rights and public interest are not always unified,and the relationship between the two is more complex.The determination of the necessity of personal data protection measures is more controversial because it reflects the prioritization of a state’s freedom and security,and personality and property rights.The dilemma in the application of non-compliance measures lies in technical difficulties,as the content of the negative list consists of both industry-specific and treaty obligations breached,but states have not yet developed uniform standards for industry delineation and identification,thus increasing the uncertainty of application.Section Ⅳ summarizes previous sections above by suggesting that the crux of the dilemma of the application of international investment law lies in the fact that the development of the global digital economy has caused existing international investment rules to lag relatively behind,but the uneven development of the global digital economy has prevented the innovation of such lagging rules.The existing international investment rules are limited to the production methods of the substantial economy,and there is a mismatch of concepts,applicable standards and balance of interests in regulating relations in the digital economy,while for most host states reforming the existing rules would be a heavy responsibility and a serious challenge,with concerns and resistance to the digital transformation of investment protection obligations.However,as the digital transformation of the global industrial chain will sooner or later be transmitted to every country and region,refusing to participate in global digital governance is tantamount to surrendering one’s voice,which may cause pain in the short term but is in the long-term interest of all countries.Therefore,the key to alleviating the dilemma lies in the balance of investment protection obligations and host states’ right to regulate,enhancing international mutual trust and cooperation,and adherence to principles of special and differential treatment.The first level is to promote a “digital friendly” innovation in IIAs,which requires the explicit inclusion of data asset as the object of protection in IIAs,the improvement of the standard of treatment and its application,the clarification of the ambiguous meaning of some exceptions,and the development and improvement of a pluralistic international investment dispute settlement.The second level is that States Parties to IIAs should prepare the necessary domestic laws and its supporting measures,which requires States Parties to build and improve their legal support systems for data protection and regulatory regimes,legal systems to effectively combat cybercrime,legal systems for overseas insurance and negative lists of non-conforming measures,as well as make an improvement of the domestic investment environment,guide the standardization of practices in the digital industry and build consensus mechanisms covering all stakeholders. |
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