Analysis Of Exemption Exceptions For Data Localization Measure

Data,as an important factor of production and strategic resources,as the cornerstone of cross-border trade,has been paid more and more attention by countries and enterprises.Since the "Prism" incident in the United States in2013,countries have generally strengthened the restrictions on cross-border data flow,which is embodied in a series of flow restriction measures represented by data localization measures.In the perspective of international law,domestic data localization measures will inevitably produce extraterritorial effects,and data localization has become the focus of controversy.The existing WTO rules were formed in the pre-digital economy era,which has a lag,and the issues related to e-commerce in the global scope are at a standstill.In the current situation,different FTAs have also become the main scenarios for studying the regulation of cross-border data flow.Throughout different large FTAs,they basically adopt a unified regulatory model for data localization measures,namely,the principle prohibition and exemption mode.In practice,countries have stipulated data localization measures of different degrees,and their justification comes from the exception clauses in different FTAs.Generally,exceptions that can be invoked in FTAs include security exception clauses,general exception clauses and specific exception clauses under the digital trade chapter.The cross-application of the three exception clauses may reduce the regulatory effect of digital trade.Therefore,this paper will analyze the exceptions to data localization regulations in major regional trade agreements such as CPTPP and RCEP,so as to clarify the possibility and legitimacy of different exceptions to data localization measures.In addition to the introduction and conclusion,the full text is divided into five parts.Then it discusses the value goal pursued by the current data localization measures and the focus of disputes in practice.Finally,by analyzing the regulation clauses of data localization in the current large FTA,it summarizes the general rules and leads to three kinds of exemption exceptions for the legitimacy of the current data localization measures.Part III Data localization measureses and general exception principles.Firstly,the article analyzes the provisions of the general exception clause in FTA and the application conditions of the general exception principle.Secondly,it analyzes whether the data localization measures can invoke the "general exception" defense to prove the legitimacy of the data localization measures.Part III Data localization measures and national security exceptions.This part analyzes the provisions of national security exception in different FTAs.Compared with the national security exception principle in WTO,the contents and application conditions of different FTAs have been expanded to different degrees.Then,it analyzes whether the data localization measures taken by the member can invoke the "security exception" for defense to prove the legitimacy of the data localization measures.The fourth part is a comparative analysis of legitimate public policy exceptions in e-commerce chapters of different FTAs,and a comparative analysis of the application conditions of this principle in different FTAs.The fifth part is the countermeasures of Chinese data localization measures.After summarizing and analyzing the main laws and regulations of data localization measures in China,this part discusses the main dilemmas faced by Chinese data localization measures and proposes countermeasures from both domestic and international perspectives.