On The Protection On Privacy Of Personal Data By International Investment Agreement

With the rapid progress of technologies of internet and communication,massive data can be interacted cross-border through the global network efficiently which has accelerated the international investment and trade activities powerfully and provided strong support for the development and prosperity of the international digital economy.Although the cross-border data flow is conducive to economic growth,it also has a negative impact on the protection of personal data privacy.In recent years,this issue has been widely concerned by the international community.Various international subjects have constructed a privacy framework or set privacy protection standards for international investment and trade.Most countries take active measures to maintain the data privacy security of their citizens,in international cooperation,however,they set up more provisions to promote cross-border data flow,especially in the multi-party government economic cooperation mechanism.Although such a provision can avoid the obstruction of cross-border data flow in investment and trade due to a party's excessively strict measures of personal data privacy protection,it will destroy the balance between the protection of personal data privacy and cross-border data flow actually.At the same time,in the international investment legal system,the host country's measures taken after joining the privacy framework and the differential treatment to the investors inside and outside the framework are more likely to incur arbitration risks.In order to avoid such problems and further improve the protection system of personal data privacy,we can introduce personal data privacy into the general exception clauses of international investment agreements while agreeing to protect data circulation clauses.Through this measure,it can not only provide enough regulatory space and legal basis for the host country's data privacy protection,but also establish predictable boundaries for the host country's regulatory behavior and the scope of foreign investors' investment and business activities.Guarantee the personal data privacy security at the cost of the smallest cross-border data flow obstacles.This paper starts from the status quo of personal data privacy protection,analyzes the data protection system and guiding ideology of several major economics,as well as the development trend of relevant international cooperation.On this basis,it further expounds the necessity of incorporating personal data privacy into the general exception clauses of international investment agreements and analyzes the interpretation and application of personal data privacy in arbitration in combination with WTO dispute settlement practice and investment arbitration experience.This paper is divided into the following four chapters:The first chapter introduces the background of the discussion in detail.First,the relationship between digital economy and cross-border data circulation,as well as the role of cross-border data flow are expounded.Secondly,it analyzes the different expressions of personal data in the privacy protection of personal data in different countries and discusses the internal consistency between different words.The first chapter finally analyzes the conflict between cross-border data flow and personal data privacy protection and its impact on international investment and analyzes the current situation of personal data privacy protection system in different countries furtherly.The second chapter focuses on the analysis of the existing privacy framework and the relevant provisions of international agreements,especially the protection mode of the existing international agreements on personal data privacy.It points out that it is not conducive to resolve the conflict between cross-border data flow and personal data privacy protection if countries are restricted by the privacy framework only.In order to solve the existing problems better,personal data privacy should be added into the general exceptions of international investment agreements.Based on the first two chapters,the third chapter discusses the necessity of introducing personal data privacy into the general exception clauses of international investment agreements.It is clarify that the practice will build an efficient dual guarantee system of personal data privacy in the investment field at a lower cost,and at the same time,it can improve the regulatory flexibility of the host country and enhance the predictability and legitimacy of investment arbitration to stabilize the legal system of international investment.In addition,this part analyzes the problems that may arise in the application of personal data privacy as a general exception by summarizing the experience of WTO dispute settlement bodies in the interpretation of general exceptions and the relevant practices in international investment arbitration.The fourth chapter summarizes the practice of setting up personal data privacy item in the general exception clause of investment agreement,and points out that China should set up personal data privacy item reasonably in the general exception clause,maintain the internal consistency of personal data privacy protection system and further participate in the work of building international privacy framework and privacy standards.