The Application Of The Doctrine Of International Comity In Data Sovereignty Conflicts

With the penetration of the Internet into political,economic,and cultural activities,data has gradually emerged as a new resource,and its great economic and social value has gradually received attention from various countries.In the future,a country's ability to control data is a key factor affecting overall national strength.In this context,conflicts between states based on their sovereign rights over data cannot be avoided.Microsoft Corp.v.United States(hereinafter referred to as “Microsoft Ireland”),which has recently concluded,is a typical example.The dispute is whether the production order of evidence issued under US law applies to data stored in Irish servers.Therefore,the conflict of data sovereignty is finally the conflict of extraterritorial application of data laws formulated by the state.The doctrine of international comity proposed by Ulrik Huber is a principle of private international law that solves the problem of extraterritorial application of law,maybe it can address the conflict of data sovereignty that temporarily lacks uniform rules under this circumstance.The doctrine of international comity allows foreign laws to have effect in the domestic domain without prejudice to the interests of the domestic country.This requires courts to conduct a comity analysis based on their national interests when deciding whether to apply foreign law.For China,although there are no typical cases of data sovereignty conflicts in practice by now,we can foresee that there are risks of such problems while the data rules are not perfect.Whether it is from the perspective of improving China's rules,or dealing with the expanding data rights of the United States,the application of the doctrine of comity in data sovereignty conflicts requires more theoretical research.The first chapter of this article introduces data sovereignty.In the context of the new era,national sovereignty has broken physical boundaries,and its application in cyberspace has also been generally affirmed.Data sovereignty,as a projection of national sovereignty in data,also has the characteristics of internal supremacy and external independence.For data where borders are difficult to determine,there are currently several models for delimiting jurisdiction.The first is the data storage standard,that is,the country where the data is stored exercises sovereignty over the data in that country's territory;the second is the data controller model,which relies on crossborder cloud service providers to obtain the data it controls;the third is data affiliate model,which means that a country can access data that has a high correlation with the data subject,which is more like the embodiment of protection principles in cyberspace.However,countries are currently in the initial stage of data legislation,and how to resolve conflicts caused by the practice of data sovereignty has not been effectively discussed.At present,data sovereignty conflicts are mainly reflected in legislation,justice and enforcement.The legislative model of different countries may be quite the opposite.For example,data localization deviates from the way in which data is accessed by data controllers;judicial and enforcement conflicts include the enforcement of data judgments and production order of external data.How to exercise the sovereign power over data without jeopardizing the sovereign rights and interests of other countries needs to be solved urgently.The second chapter is an introduction to the doctrine of international comity,and analyzes the rationality of its application to the conflict of data sovereignty.The doctrine of international comity refers to a legal principle that recognizes the jurisdiction of another country and the judicial judgments and rulings made by the courts of other countries in accordance with their domestic laws,without affecting the public interest of the country.The doctrine of international comity has a long history.After Huber's proposal,it experienced the development of Story,Currie and other scholars,and enriched the connotation in long-term judicial practice.The doctrine of international comity is based on respecting the sovereignty of other countries,which is beneficial to balancing relations between countries and constitutes a benign interaction.At the same time,in the case of incomplete data sovereignty legislation and the absence of international law in data,the doctrine of international comity,as a more mature principle of international law,can also provide a buffer and transition space for the current data sovereignty conflict.The third chapter discusses the application of the international comity in practice.Comity is not unconditional courtesy.Some analysis should be made before the courtesy.First,make a certain judgment on whether the current conflict is a real conflict or a false conflict,and then seek the minimum connection between the case and the law of the country where the court is located,and balance the interests of the country and other countries,as well as the interests of the parties involved.Comity can be divided into prescriptive comity and adjudicative comity according to its applicable subject.At the same time,depending on the way it manifests itself,comity can be exercised in a negative way of self-restraint or in a positive way of recognition.Prescriptive comity can be performed through public order reservations,recognition of state actions,reasonable setting of jurisdiction,and interpretation of original vague provisions in a manner consistent with international law.Adjudicative comity is mostly reflected in the recognition and enforcement of judgments and external evidence collection.The fourth chapter aims to explore the deficiencies in China's data rules,and the guiding significance of the doctrine of international comity to the development of China's data rules.At present,countries' legislation on data is still in its infancy,and China's data rules also have problems of rigid models and ambiguous provisions.The doctrine of international comity has not yet been incorporated into China's legal system.However,in recognition and enforcement of judgments and antitrust,scholars have also discussed enthusiastically about the participation of comity analysis.This paper believes that the basic model of data jurisdiction should be determined first.At the same time,the doctrine of international comity can be added to the legislative and judicial procedures as a prerequisite.However,we can see that in practice,the doctrine of international comity can also be reduced to a tool for expanding the effectiveness of the country,such as the design of the Cloud Act.Therefore,China's using the doctrine of international comity should be based on China's historical and cultural traditions and legal system,and based on the premise of protecting its sovereign rights and interests.