Research On Compliance Of Data Localization Measures With International Investment Agreements

In recent years,with the rapid development of big data technology,data shows exponential growth.The value of data is increasingly valued by countries around the world,and it is known as a strategic resource comparable to oil.The free cross-border flow of data not only promotes the development of international economy,but also brings a lot of risks and hidden dangers,such as privacy infringement,data surveillance of other countries and sovereignty challenges.In particular,the “prism gate” incident in the United States in 2013 and the “Cambridge analysis event” on Facebook in 2018 have aroused the vigilance of all countries,especially the developing countries.In this context,many countries have adopted domestic legislation to increase the restrictions on cross-border data flow.Among them,the most common is data localization measures,that is,relevant data collected in or from the country must be stored in the country.For example,the network security law of the People’s Republic of China,which came into effect on June 1,2017,requires that personal information and important data should be stored in the country Localized storage.The meaning of "investment" in IIAs is very broad,and data has now become a factor of production,with the property nature,in line with the definition of "investment".Therefore,IIAs are applicable to data localization measures.The purpose of data localization is to protect national security and personal privacy,and maintain the data advantage of domestic industry,which is legitimate.However,it is undeniable that data localization measures hinder the free flow of data,and there are many disadvantages.In the field of international investment,it is manifested as the increase of cost,the decline of competitiveness,and even the loss of control of cross-border investment enterprises,This leads to disputes between investors and host countries,which leads to disputes about whether data localization measures violate the compliance of international investment agreements.The related compliance disputes are mainly reflected in two aspects: whether the data localization measures violate the obligations of national treatment and indirect collection in IIAs.This paper is divided into four chapters.The first chapter introduces the connotation of data localization,analyzes the types of data localization measures implemented by many countries and the reasons for the implementation of the measures,and briefly expounds the impact of data localization measures on international investment,lists the international rules and regulations of data localization measures,the attitudes of relevant countries and their legislative status,and combs the international investment situation at the end of the chapter The main issues involved in the compliance of data localization measures under the agreement.The second chapter is data localization measures and national treatment compliance analysis.On the issue of national treatment obligation,we should first adopt "The same economic or commercial industry standard" to judge whether foreign investors and domestic investors are in similar situations,then judge whether the data localization measures give foreign investors de facto discrimination,and finally consider whether there are "exceptions".The third chapter is the data localization measures and indirect collection compliance analysis.On the issue of indirect expropriation,according to the criterion of "giving consideration to both effect and purpose",we should first determine the extent to which the host country’s data localization measures have affected foreign investment and foreign investors,mainly whether it is a "substantial or fundamental deprivation" of foreign investment or seriously damaged the reasonable expectations of foreign investors.Then it examines whether the purpose of the host country’s regulatory measures is to safeguard the public interest.Finally,according to the principle of proportionality,it considers the balance between the public interest achieved by the data localization measures and the loss suffered by foreign investors.The fourth chapter puts forward relevant suggestions based on the basic situation of China’s data localization measures,trying to protect the data security and coordinate with the obligations in the international investment agreement.Firstly,China should improve the domestic data legislation and clarify the legislative value of data localization measures;secondly,we should pay attention to industry division and strengthen data security research;thirdly,we should actively revise the international investment agreement and incorporate the right of data regulation into the exception clause;finally,we should take the initiative to fight for the voice of international data rule-making.