Research On The Exception Clauses Of Cross-border Data Flow In International Trade Agreements

At a time when the world’s demand for the free flow of cross-border data is increasingly urgent,including the endless regulation measures of blocking Tik tok’s internal cross-border data flow,there are doubts about violating the non discrimination principle and fair trade principle of international trade agreements on the grounds of exception clauses,which damages the legitimate rights and interests of other parties to trade agreements,Thus,the trend of cross-border data free flow and the flexibility value of exception clauses in the compliance stability of agreement obligations are impacted.The application of trade agreement exception clauses will affect the compliance of the parties’ cross-border data flow governance measures and the enforceability of the parties’ regulatory rights.At the same time,the diversity of manifestations of exception clauses further increases the complexity of cross-border data flow regulation.On the one hand,it strengthens the possibility of restricting the free flow of cross-border data.On the other hand,the parallel and cross application of exception clauses also increases the uncertainty of cross-border data flow governance under international trade agreements.Therefore,this paper takes the exception clauses related to cross-border data flow in international trade agreements as the research object,discusses the construction core,basis and purpose of the exception clauses in international trade agreements,and sorts out the applicable disputes according to the application of the exception clauses related to cross-border data flow in international trade theory and Practice,This shows the necessity of analyzing,studying and standardizing the exception clauses of crossborder data flow.By analyzing the relationship between cross-border data flow and three types of exception clauses in international trade agreements,this paper discusses the policy-making of cross-border data flow regulation measures of contracting states in international trade agreements and the inclusion space of exception clauses.Based on the legislative regulation of the exception clause,this paper makes a detailed analysis of its choice and application in the governance of cross-border data flow,and standardizes its restrictive effect on cross-border data flow in international trade agreements in terms of its own system construction and choice and application.Finally,it puts forward the specific path to optimize the governance of China’s cross-border data flow from the perspective of exception provisions from three aspects: improving the domestic data security legislative rules,improving the exception provisions of crossborder data flow in trade agreements,and promoting the connection between domestic data security legislation and the exception provisions of international trade agreements.The main body of this paper is divided into four chapters:The first chapter introduces the institutional structure and application disputes of cross-border data flow exception clauses in international trade agreements.Firstly,from the perspective of institutional structure,the core of the exception clauses on crossborder data flow in international trade agreements lies in the balance: first,the balance between freedom and security in cross-border data flow;second,the balance between the stability of treaty compliance and the flexibility of Treaty Application;The basis of the exception clauses on cross-border data flow in international trade agreements covers both subjective and objective aspects;The purpose of the exception clause on crossborder data flow in international trade agreements is to fill the demand gap between Contracting States for free trade and safe trade,and reconcile the contradiction between the right of reasonable regulation and the compliance with treaty obligations.Secondly,it expounds the disputes arising from the imperfect regulation of exception clauses,including the risk of abuse of exception system and the limited operation of exception regulations.Through the overview of this chapter,this paper puts forward the practical application of the exception clauses on cross-border data flow in international trade agreements.In order to eliminate the risk of system abuse and make up for the limitations of the operation of the clauses,we must clarify the standards for the normative application and fair trial of the exception clauses in combination with the causes of practical difficulties,and clarify the multiple application possibilities of complex exception clauses,Avoid the speculative use of exception clauses to seek illegal interests other than the legitimate rights conferred by international trade agreements.The second chapter,starting from the classification of exception clauses,analyzes the relationship between cross-border data flow and the regulation of exception clauses in international law,and demonstrates in detail the policy considerations and derived legislative operations of Contracting States to justify their cross-border data flow restriction measures on the grounds of exception clauses.Exceptions to cross-border data flows can be divided into specific exceptions to cross-border data flows,general exceptions and fundamental security exceptions with universal applicability.This chapter holds that the adoption of specific exception clauses related to cross-border data flow by Contracting States to ensure their right to regulate cross-border data flow under the system of international trade agreements is not hindered in theory.Disputes often exist in the general exception and fundamental security exception clauses in international trade agreements.When invoked by Contracting States to justify their acts of restricting cross-border data flow,Whether the policy consideration of its legislative regulation can effectively connect with the general exception clause and the fundamental security exception clause depends on the definition of the connotation of the value contained in the exception clause and the clear rules of the application of the exception.The relationship between exception clauses and cross-border data flow in international trade agreements cannot be established and improved,which will affect the restrictive role of exception clauses,lead to the improper application of exception clauses by contracting states in international trade practice,and then hinder the legitimate practice of cross-border data flow among contracting states under the framework of international trade agreements.The third chapter is the explanation of the coexistence of spatial restrictions and the application of cross-border restrictions on international trade agreements.Firstly,this chapter sorts out the multiple applications of cross-border data flow exception clauses.Secondly,starting from the investigation of the cross-border data flow exception provisions in the existing international trade agreements,this paper explores the idea of solving the malicious circumvention of the obligations of contracting parties to prevent the free flow of data in trade agreements under the application of multi-layer cross-border data flow exception provisions.This chapter holds that it is not enough to deal with the unreasonable restrictions on cross-border data flow caused by the diversity of exception clauses,and it is also necessary to analyze the possibility of multiple application of exception clauses,Otherwise,it is impossible to fundamentally avoid the practical possibility of abusing the exception clause to justify the application of crossborder data flow regulation measures.The fourth chapter puts forward some suggestions to improve the exception clauses of China’s trade agreements from the perspective of data regulation from the domestic level,international level and promoting the connection of domestic and international governance.First,clarify the applicable rules of China’s data security laws,including the supplement and optimization of China’s domestic legislation on data security and the establishment of standards for the selection and application of exception clauses.Second,optimize the exceptions related to cross-border data flow concluded by China,including the exceptions related to the governance of cross-border data flow in trade agreements and digital trade agreements.Third,pay attention to the reasonable connection between China’s data security legislation and the exception clauses in the international trade agreements concluded by China.If there are differences in the regulation between China’s domestic legislation on the governance of cross-border data flow and the international trade agreements to which China is a party,it will cause obstacles to the application of rules for the participation of international trade subjects in international trade practice.In addition,effective and consistent convergence is more conducive to the promotion of China’s position on cross-border data flow governance in the international community.With the improvement of the status of data as a strategic resource of various countries,China should more actively participate in the governance of cross-border data flow,and comprehensively improve the governance of cross-border data flow from the dual perspectives of domestic and international with a comprehensive and multi-level approach.