The chapter explores the concept of data portability in a data-driven world. In the first part, it maps out the journey data takes in a data economy and investigates the valuation and cost of data. It posits that, because of data analytics, machine learning, and artificial intelligence models, “generated” data, as data that has been derived or inferred from “raw” data, is of higher value in the data market, and carries a higher cost of production. In the second part, building on this taxonomy, the requirements for the free flow of data in competitive data-centric markets are discussed: regulations on data tradability and portability. The analysis leads to doubt that the newly introduced and widely debated rules regarding portability of data under European Union law will adequately provide these prerequisites. The chapter concludes by suggesting an alternative model for data portability: rather than distinguishing between personal and non-personal data, the legal concept of data portability should be based on the allocation of value; that is, whether the value of data provides cost compensation to the service provider. Raw data should always be portable, while generated data may require a more refined regime depending on whether it is compensating costs.

This chapter analyses the consistency of the barriers to services trade that were identified in Chapter 3 with the GATS obligations as elaborated upon in Chapter 6. First, the chapter addresses restrictions to cross-border data flows, using two case studies: Russia’s amended Law on Personal Data and the EU’s General Data Protection Regulation. Second, the barrier of web filtering and content control is assessed under the applicable GATS obligations, using the case study of China’s Great Firewall. Third, the lack of access to infrastructure as an obstacle to digital services trade is considered using the case study of the United States’ Restoring Internet Freedom Order. Finally, a briefer analysis of the GATS consistency is provided for bans on cross-border supply through electronic means, digital taxes and restrictions on intellectual property rights. For each of these barriers, the services at issue are classified, the different GATS obligations are applied and the potential justification grounds are considered.

This chapter elaborates on the impact of digitisation on international trade. It explains both the benefits of digitisation and the issues that the digital economy faces. Digitisation has allowed for unprecedented supply of goods and services across borders and has removed many practical barriers to the cross-border supply of services. However, the positive impact of digitisation on the global economy has not reached all countries to the same extent. The ‘digital divide’ entails that several developing countries at the moment do not sufficiently benefit from the changes brought about by digitisation. The chapter further elaborates on the impact of digitisation for services trade specifically. In order to set the scene for the rest of the book, the concept of digital services is contextualized and explained, providing the reader with a clear understanding of the subject of the legal analysis that will be conducted in the rest of the book.

Having defined ‘digital services’ for the purpose of the book, this chapter identifies different barriers to digital services trade. First, the chapter explains how general barriers to trade in services also impact trade in digital services. The most prominent example of such a barrier is regulatory divergence. Second, the chapter elaborates on restrictions on cross-border data flows and the high impact they have on any service that is supplied electronically. Data is omnipresent in the digital economy and restricting data flows has a far-reaching impact on both digital and offline trade. Data localization requirements are further discussed as the quintessential example of barriers to data flows. Third, the chapter elaborates on web filtering and content control, which effectively prevent certain service providers from reaching consumers in certain markets. Fourth, a brief overview is provided of other barriers to digital services trade, including limited access to infrastructure, bans on the cross-border supply of services through electronic means, digital taxes and restrictions on intellectual property rights.

Laws and regulations hindering data flows across borders are trade-restrictive, and some of these measures can violate WTO and PTAs' obligations. The chapter starts by exploring the multi-layered policy framework governing data flows and cross-border data flows identifying various policy goals typically associated with data restrictions.

This includes exploring the various elements required within the WTO framework to address the policy ramifications of data restrictive measures, focusing on General Agreement on Trade in Services (GATS). The chapter then explains the trade-related aspects of data flow regulation by focusing on two interconnected topics: (i) the special nature of digital trade and trade in data that makes it harder to apply existing GATS provisions to digital services; and (ii) those aspects of data flows that are trade-related and, thus, should be addressed in a trade law framework. Finally, the chapter proposes a novel WTO framework on data flows by identifying the foundational principles for data regulation and the legal provisions necessary to enable security, predictability and certainty in data flows.

Data flows are at the core of digital trade debates, as they are key to the data-driven economy, while at the same time posing a number of challenges to state sovereignty and the protection of individual rights. While adaptation at the WTO has been slow, states have turned to preferential trade venues to address the new set of issues that the era of big data has posed. The chapter, based on a comprehensive dataset, traces the developments in preferential trade agreements, in particular those of relevance to cross-border data flows. It zooms in on the recent trade deals ofthe CPTPP and the USMCA and provides a detailed analysis of the current state of global digital trade law.

Human rights do remain valid currency in how we approach planetary-scale computation and accompanying data flows. Today’s system of human rights protection, however, is highly dependent on domestic legal institutions, which unravel faster than the reconstruction of fitting transnational governance institutions.

The chapter takes a critical look at the construction of the data flow metaphor as a policy concept inside international trade law. Subsequently, it explores how the respect for human rights ties in with national constitutionalism that becomes increasingly challenged by the transnational dynamic of digital era transactions.

Lastly, the chapter turns to international trade law and why its ambitions to govern cross-border data flows will likely not advance efforts to generate respect for human rights. In conclusion, the chapter advocates for a rebalancing act that recognizes human rights inside international trade law.

This chapter examines the new role of data in trade and explores how trade in data differs from trade in goods and services. It argues that data is different and may need a distinct set of rules. The chapter explores several analogies used by analysts to describe data as an input, which can help understand how data could be regulated.

Many executives and policymakers argue that trade agreements are the appropriate venue to govern cross-border data flows. The chapter discusses how trade policy-makers are regulating trade in data and how these efforts have created a regulatory patchwork.

Finally, an alternative approach is suggested, noting that any agreement must be built by and for the people whose data serve as its foundation. Before trade negotiators try to develop rules regarding cross-border data flows, they must acknowledge the special character of data and focus first on creating an effective enabling environment and building trust in that new economy by empowering people around the world to control their data.

The big question for policymakers is how to allow for data to flow freely across borders while maintaining strong data protection laws and regulations are necessary to a high degree of trust among individuals, firms and governments. International trade agreements seek to regulate data flows through provisions aiming to facilitate the cross-border trade of goods and services built on data, such as data processing and other computing services.

This chapter offers a detailed analysis of these CPTPP/USMCA digital trade provisions that pertain to data flows in order to identify the constraints they could impose on national data regulation.

To do so, it uses Canada as an example, because it is a party to both trade agreements and it seeks to build a high-trust data environment for consumers and businesses. The analysis leads to the conclusion that Canada’s CPTPP and USMCA commitments could ultimately negate the effectiveness of future data protection policies that the Canadian federal government might want to adopt to achieve its ‘trust in the digital age’ objective.

The chapter provides an overview of the current and emerging trends in disruptive technologies and discusses the sweeping effects of digitization at different levels of the economy. The chapters focus then shifts to the effects of digitization on trade and explores the implications for trade policy. In order to understand what needs to be changed or at least calibrated in existing external trade policies, we need to know what we have in terms of existing regulatory frameworks – both at the international and at the regional and bilateral levels. It is the objective of the chapter’s third part to attend to this need as well as to show how selected countries have responded to the digital challenge and formulated distinct or less distinct responses in their respective external trade policies. Here, in particular, an understanding of the digital agenda of the United States, as well as of the new templates for electronic commerce, is essential and the chapter conveys this knowledge by focusing on the most advanced model so far - that of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The chapter goes on to contextualize and assess the impact of the existing legal frameworks, as shaped by preferential trade agreements.

In recent years, the negotiation of various trade agreements, such as the TPP, TTIP and CETA, has been accompanied by a large public backlash. Are we observing a paradigm shift in public perception of world trade or just temporary shifts in public support for the global economic order that oscillate around a more or less steady level? This chapter provides an overview of the major determinants of support for or opposition against PTAs and discusses how much room to maneuver policy makers have in designing such agreements. Furthermore, we discuss what policy makers can do to increase support for such agreements. We thereby focus on framing strategies and provide an analysis of which types of arguments are conducive to increase support for PTAs and how individuals process such information. This allows us to construct different future scenarios for policy makers to better align the negotiation and design of future trade agreements with the demand of their constituencies.