| The world has entered the digital era due to the development of information and communication technology,and the generation and flow of data are becoming more and more frequent,which brings new development opportunities to trade between countries.The frequency of such flow has also increased the complexity of governance.Cross-border data flow has become a new topic in the field of international trade.Personal data is a tricky area in data cross-border flow governance due to its dual attributes of personal right and property right.When formulating the policy on the cross-border flow of personal data,countries need to weigh multi-dimensional interests and make a comprehensive judgment on the primary objective to be accomplished now.Recently,due to the frequent leakage of personal privacy,some countries prohibit personal data from leaving the country,for the purpose of protecting the privacy and public interests of their citizens.The personal data generated or collected in their country can only be stored in the country and cannot be moved,that is,the data localization policy.Data localization is a means of data cross-border flow governance,including the way to completely prohibit the flow of personal data,as well as the way to restrict data flow through extremely strict evaluation means.These data localization policies have increased the cost of entry for foreign companies,causing foreign companies to give up a country’s market due to the high cost of local compliance.While it is true that keeping personal data within one country’s border reduces the cost of governance for the government,it objectively discourages foreign companies from entering one country’s market and creates a disparity in terms of service conditions between foreign and local companies.International community has argued that personal data localization measures may be a new type of trade barrier in the digital economy and can hinder the liberalization of global trade,thus triggering a debate among scholars on the compliance of personal data localization in the international trade and economic rules.The object of this paper is the compliance of personal data localization with international trade law,exploring the boundaries of international trade rules on personal data localization,clarifying the circumstances under which personal data localization constitutes the trade barrier,and thus making recommendations for a harmonized approach to personal data localization in China.The paper has been divided into four sections.The first section introduces the regulation of the personal data cross-border flow and data localization in the world up to now,and divides data localization into three types: strict localization,substantive localization and targeted localization,while targeted localization is a discriminatory strategy adopted by the US against specific countries(e.g.China)and is not the major focus object of this article.Then,it is argued that the main problem facing data localization in international trade is whether it conflict with existing international trade laws and thus constitute the trade barrier.The second section analyzes the compliance of data localization in GATS in terms of GATS provisions.If a country completely bans personal data from flowing,it may violate the GATS market access principle and result in a zero quota for a committed service;if an overly strict data flow policy is implemented,it will essentially have the effect of data localization and may violate the GATS national treatment principle.An analysis of Article 14 and Article 14 bis of the GATS shows that the possibility of citing the personal privacy exception and the national security exception for personal data localization is low.Therefore,the localization of personal data constitutes trade barrier within the WTO framework as it is inconsistent with GATS rules.The third section takes CPTPP and RCEP as examples to analyze another important source of international trade law-regional trade agreements(RTAs).When GATS was fomulated,the impact of the internet on the economy was not so profound.In the 30 years since its entry into force,the application of many provisions needs to rely on the interpretation of dispute settlement body.RTAs have become a "testing ground" for solving international trade matters.CPTPP is more stringent in prohibiting data localization and leaves less room for exceptions.The RCEP is more flexible in the formulation of its provisions,as the level of economic development varies greatly among the contracting parties,and there is more room for the application of exceptions,so that the contracting parties can decide the boundaries of data localization.The final section returns to Chinese practice.By sorting out the rules of personal data localization in China,this paper points out that there are gaps and unclear provisions in implementation of data localization policy in our country,and then put forward suggestions on how adjust the applicable boundary of personal data localization in China so that it does not constitute unreasonable restrictions on international trade,such as improving the detailed rules of data flow rules,trying to introduce data flow white list system,and make better connection between domestic law and international rules,to reduce the doubts of the international community on China due to the data localization policy. |
