Research On The Regulation Clauses Of Data Cross-border Flow In CPTPP

With the globalization of digital trade and the rapid development of cross-border e-commerce,the demand for cross-border data flows is increasing.The fast speed and wide range of data flow across borders have made countries start to be concerned about data policies to maintain national security,public order,citizens’ personal privacy and facilitate law enforcement,etc.Regional economic and trade agreements have therefore started to include data flow across borders clauses to regulate data flow across borders in cross-border e-commerce,to ensure that the contracting parties allow the free flow of data necessary for e-commerce on the one hand and to safeguard the data rights of each party on the other hand.The Comprehensive and Progressive Agreement for Trans-Pacific Partnership(CPTPP),a multilateral trade agreement signed by 11 countries,including Japan,Canada,and Australia in 2018,sets high openness requirements for the cross-border flow of data among its contracting parties.China formally applies to join the CPTPP in 2021,and whether a country can accept the cross-border flow of data in the CPTPP as a new issue in the economic and trade negotiations is a key factor in joining the CPTPP.The CPTPP data flow regulation clauses recognize each contracting party’s regulatory requirements for the electronic transmission of information.The clauses provides a "shall allow" requirement on the electronic transmission of information between contracting parties,unless the contracting party is required to adopt or maintain other measures to achieve a legitimate public policy objective.The CPTPP recognizes each Contracting State’s regulatory requirements for the electronic transmission of information through electronic means.It can be seen that the CPTPP is based on the principle of free flow of data across borders and meets the requirements of contracting parties to maintain national security and public order through exception clauses,which is different from the current conservative legislative tendency of China,which favors the principle of data protection.These differences are mainly reflected in the incompatibility between China’s domestic legislation and the CPTPP rules on the regulation of cross-border data flow,and the different positions of the international economic and trade agreements to which China has acceded and the CPTPP.China’s accession to the CPTPP requires it to meet the requirements of the agreement’s rules governing cross-border data flows.Therefore,in order to ensure China’s smooth accession to the CPTPP and to reasonably respond to the opportunities and challenges brought to China by its data cross-border flow regulation clauses in the process of applying the CPTPP after accession,it is necessary to conduct a deeper study on the textual meaning and legal structure of the general clauses and exception clauses of the CPTPP data cross-border flow regulation,analyze the ambiguous areas of the clauses in depth,and combine the position and logic behind the agreement to Finally,based on these opportunities,risks and challenges,we explore the direction of China’s response to the CPTPP’s data cross-border flow regulation clauses at both domestic and international levels.At the international level,under the concept of building a community of destiny in cyberspace,we will pay attention to the implementation of our commitments during the subsequent negotiation process,and actively reach consensus with other member countries on the application of the clauses on cross-border data flow in the process of application,so as to promote international cooperation.Ultimately,China is urged to promote its further participation in the international governance of cross-border data flows and help the development of international digital trade in China under the premise of safeguarding national security and social public interests.In view of this,in order to achieve the above objectives,based on the general rules of treaty interpretation of the Vienna Convention on the Law of Treaties and the text of CPTPP,how should we accurately understand the textual meanings of the general clauses and exception clauses of the data cross-border flow regulation in CPTPP? What are the risks associated with the use of language that are ambiguous or differ from that of other trade and economic agreements that we need to consider? Which data-biased position of the CPTPP is reflected in these clauses? What are the national interests behind them? What are the reasons and logic for such clauses? What opportunities will the high standard data flow clauses bring to China? What challenges is China facing in the follow-up negotiation process of joining the CPTPP? What difficulties do China’s current domestic rules have in articulating the data cross-border flow clauses in the CPTPP? Further,what challenges will China face in the subsequent application process after China’s accession to the CPTPP? How should China grasp these opportunities and reasonably address these challenges? These are the questions that need to be seriously and comprehensively examined and solved at the stage of China’s application to join the CPTPP.This paper tries to answer these questions in the context of both global perspective and Chinese practice from the text of CPTPP.Firstly,this paper clarifies the background of the CPTPP,and sorts out the concerns of China’s accession to the CPTPP in terms of data cross-border flow regulation and the legal dilemma faced by domestic data cross-border flow rules in response to the CPTPP rules.Secondly,this paper divides the data cross-border flow regulation clauses into general clauses and exception clauses,analyzes clauses’ texts,explains the meaning of important concepts,analyzes the ambiguity of the general clauses and exception clauses of the data cross-border flow regulation in CPTPP,and predicts the possible risks,so as to prepare for the subsequent chapters.Thirdly,the reasons and logic behind the CPTPP’s position on cross-border data flows are examined in the context of the signing process.And the bias of national interests hidden behind the clauses of the agreement on the regulation of cross-border data flows is studied.Finally,this paper analyzes the current status of China’s domestic legislation on the regulation of cross-border data flows and the position of the relevant clauses of international economic and trade agreements such as RCEP,and proposes a response and improvement path for China under the concept of the community of destiny in cyberspace,focusing on the issues of national security,public interest protection and economic development balance in China.