Data Barriers to International Trade

This thesis analyses whether data barriers fall under the WTO law and offers a critical account of data governance affecting international cross-border trade. Often data barriers are trade barriers which the WTO Agreement prohibits. Data barriers may be justified under various WTO rules and may constitute legitimate tools for pursuing national policy objectives. However, this thesis concludes that the design of data barriers overburdens cross-border trade to a great extent and in the long run erodes the future of progressive market liberalisation.

WTO Members undertake to provide non-arbitrary and non-discriminatory treatment of foreign trade unless specific exceptions allow otherwise. This thesis demonstrates how data barriers often fail to comply with these obligations under the GATT, the GATS and the TBT Agreement. It further raises some important issues under the TRIPS Agreement and argues that services and intellectual property are inherently interconnected, and the TRIPS Agreement plays a role in market access issues relating to data flows.

While some data barriers were meant to protect privacy and national security, they bring significant objectionable economic consequences for international trade actors. A critical review of data barriers, including legal regulations requiring data localisation and constraining data encryption, as well as technical regulations enforcing content restrictions and data routing protocols, suggests that data barriers often form protectionist regimes for cross-border trade.

As there are different views about the role and legitimacy of data barriers among the WTO Members, this thesis utilises pragmatic approach in assessing international trade law and policy. It finds that data barriers are often de facto multipurpose regulatory tools that do not account for initial policy objectives. Moreover, they often produce practical consequences that work against both initial and future policy objectives. Finally, this thesis reveals the structural bias behind data barriers which is a failure of trust between the WTO Members.

Therefore, this thesis recognising the need for a change and more effective rules regarding data barriers concludes that in order to maintain progressive market liberalisation in international trade, the WTO Members should address trust failures before negotiating any substantive provisions. Nevertheless, this thesis contends that dispute settlement remains a viable option to ensure data barriers do not distort a predictable and secure environment established by the WTO Agreement.