Cross-Border Data Flow Protection From The Perspective Of International Investment Law

In recent years,data,as an important factor of production,has risen to the level of national strategy and constitutes the core part of enterprise value.Data has been regarded as strategic basic resources.Cross-border data flow is more and more important of digital economy.It also involves sensitive issues such as personal privacy protection,national security and public interest,which have triggered data control in various countries.In the international economic and trade field,cross-border data flow has been stipulated as an important topic in the APEC framework,some free trade agreements and RCEP agreements.The APEC Privacy Framework relies on the accountability agencies that are part of the CBPR system to ensure a high level of privacy protection.TPP,for the first time,has comprehensive provisions on policy issues in digital trade and cross-border data flow,stipulating the obligations to be observed among member countries,but these provisions are still flawed.RCEP realizes the vision of developed and developing countries negotiating rules on cross-border data flows on an equal footing,and is expected to create new rules on crossborder data flows in the future.Cross-border data flows should not only be considered in international trade,but also in international investment.Data can be regarded as "proper investment" in the judicial practice of the international arbitration tribunal or in the broad context of the concept of "investment".Under the background of "national regression" in international investment,cross-border data flow is unlikely to be restricted by domestic laws or policies of each country.Therefore,international investment law should form a framework system to ensure free and secure crossborder data flow.In addition,data is inextricably linked with economic activities,and free investment is inseparable from the free flow of cross-border data.International investment laws aimed at promoting international investment liberalization are supposed to protect the free flow of data across borders.From the perspective of international investment law,cross-border data flow involves complex legal issues such as personal privacy protection,network information security,public interest,intellectual property protection,etc.Countries have very different positions on regulation of cross-border data flow.American regulations emphasize the absolutely free cross-border data flow,but at the same time carry out disguised intercpeation of some data out of the country according to the needs of national interests.The EU pays more attention to the protection of personal privacy in data flow and establishes a higher standard of personal privacy protection.Many developing countries,focusing on national security,have made more restrictions on cross-border data flows.Countries’ positions are far apart and hard to agree on.On this basis,the protection of cross-border data flows should adopt the position of pluralistic co-governance and active consultation;Attention should be paid to the diversification of participants.The government should convey the reasonable demands of data possessive subjects and transmission subjects.Targeted supplement and upgrade of the investment agreement;At the same time,straighten out the relationship between the exception clause in the investment agreement and data flow to avoid the negative impact of using the exception clause at will.Finally,The International Investment tribunal should improve the level of arbitration by improving the qualification of arbitrators and reasonably solve the arbitration disputes caused by cross-border data flow.As a big data country,China also has domestic legislation on cross-border data flow.The Data Security Law for the first time puts forward the principle of "safe and free flow of data",which also conveys China’s position on cross-border data flow.However,China should actively strive for the right to speak in international investment law and build a Chinese framework for free and secure data flow.And along the way,speaking right of international law can be dissected into discourse subject,the object of discourse,the discourse resources,the path of discourse content and discourse the five elements of China have the chance to according to its own discourse resources,comprehensive utilization of various paths,to reflect the objectivity and universality of the international society,promote the international investment is growing effect,on the basis of the discourse content The protection of crossborder data flows under the legal framework of international investment takes the lead.At the same time,it is necessary for China to make full use of the explicit binding joint interpretation mechanism to improve the principles and rules.Use treaty interpretation to manage differences between countries on cross-border data flows and seek consensus among states parties.And China will promote the establishment of a more equitable system for protecting cross-border data flows.