A Comparative Law Study Of Model Contracts For The Cross-border Transfer Of Personal Data

Among the various data transfer tools,there is no other approach that continues to respond to the needs of practice with its certainty,predictability,and flexibility like the model contract.Despite some limitations of it,the contractual approach has been one of the most important tools for SMEs that cannot afford to go for tailor-made legal solutions for cross-border data transfers.And how to design a proper model contract has become an important issue for national legislation.With the extraterritorial effect of EU data protection law causing imitation effect globally,regulating the cross-border flow of personal information through contractual methods has also become one of the important legal bases for the cross-border flow of data in various countries.There are also regional organizations,including ASEAN,that seek a minimum level of consensus among members.Although China’s data protection legislation is still in its initial stage,the legislative idea of separate regulation of personal information and other important data has been established,and the standard contract drafted by the Netcom department will be available soon,so it is necessary to discuss the applicable scenarios,structure,and the content of key clauses of model contract in more detail through comparative law studies.This paper is trying to discuss the problems to be avoided and the advantages of further development of the Chinese version of “model contract”.Firstly,the two mainstream legislative models,namely the data transfer location-based theory and the data controller-based theory,are compared,and the advantages of the latter model are summarized in the absence of international consensus on data protection.In particular,the standard model contract is able to provide a minimum level of protection,more certainty and legal predictability in the case of uneven legislation of data protection laws across countries.In order to put forward feasible opinions on the localization of the standard model contract system,this paper attempts to summarize the theoretically important constituent elements of the standard model contract for cross-border transmission of personal information from the internationally prevailing texts,namely,common substantive reference rules,effectiveness of the rules,and enforcement guarantee mechanism of the rules.Finally,based on the historical evolution of Chinese standard contract texts,it summarizes the conduction problems brought about by the rough legislation,and then proposes suggestions for the framework design and content arrangement of Chinese standard contract texts in response to these problems one by one.Finally,this paper proposes that on the one hand,it is necessary to improve the legal text,and on the other hand,it is also necessary to actively participate in the discussion of bilateral or multilateral arrangements to seek a minimum degree of consensus among countries,and only in this way can we continuously bring into play the guiding force of China’s data rules and solve the problem of difficult two-way compliance of cross-border data flow.