protects personal data through the establishment of exceptions under the chapters on
trade in services,
18 investment,
19 and the free movement of natural persons.
20
7 Financial Services
Agreements with chapters or annexes on financial services may deal with two main
questions regarding data protection: trans-boundary transfer of information and
limits of public access to sensitive or confidential data.
The first question is addressed because general interdiction of transfer of personal
data is a possible domestic measure to protect individuals through, for instance, the
adoption of white lists of countries and regions to which data may flow. Since
financial services eventually depend on personal data and information, the regulatory
management of lists and criteria of data protection could bypass treaty provisions on
financial services’ liberalisation. So, although it should be regarded as implicit in a
financial services agreement, some texts include an explicit disposition that allows
financial data transfer consistent with the conduct of ordinary business.
The second question is related to the limits of the effects of an agreement on
liberalisation of financial services. Albeit in different degrees and structures, public
entities often collect and hold information on individual customers of financial
institutions. The management of such data follows the standards established in
domestic law, which is expressly recognized as being outside the scope of international instruments of financial services liberalisation, such as the Annex on this issue
of GATS, which states:
2. Domestic regulation.
(. . .)
(b) Nothing in the Agreement shall be constructed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential
proprietary information in the possession of public entities.
Somewhat equivalent texts can be found in many free trade and economic
cooperation agreements, always preserving the state jurisdiction in this regard. As
a matter of fact, some degree of protection of identity and sensitive financial
18 JPN-SIN FTA, Article 69: “General Exceptions under Chapter 7. 1. Subject to the requirement
that such measures are not applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination on trade in services between the Parties, nothing in this Chapter shall be
constructed to prevent the adoption or enforcement by either Party of measures: (. . .) (c) necessary
to secure compliance with laws or regulations which are not inconsistent with the provisions of this
Chapter including those relating to: (. . .) (ii) the protection of the privacy of individuals in relations
to the processing and dissemination of personal data and the protection of confidentiality of
individual records and accounts;”
19 JPN-SIN FTA, Article 83: identical wording as Article 69, quoted above.
20 JPN-SIN FTA, Article 95: identical wording as Article 69, quoted above.
492
J. A. F. Costa
trade in services,
18 investment,
19 and the free movement of natural persons.
20
7 Financial Services
Agreements with chapters or annexes on financial services may deal with two main
questions regarding data protection: trans-boundary transfer of information and
limits of public access to sensitive or confidential data.
The first question is addressed because general interdiction of transfer of personal
data is a possible domestic measure to protect individuals through, for instance, the
adoption of white lists of countries and regions to which data may flow. Since
financial services eventually depend on personal data and information, the regulatory
management of lists and criteria of data protection could bypass treaty provisions on
financial services’ liberalisation. So, although it should be regarded as implicit in a
financial services agreement, some texts include an explicit disposition that allows
financial data transfer consistent with the conduct of ordinary business.
The second question is related to the limits of the effects of an agreement on
liberalisation of financial services. Albeit in different degrees and structures, public
entities often collect and hold information on individual customers of financial
institutions. The management of such data follows the standards established in
domestic law, which is expressly recognized as being outside the scope of international instruments of financial services liberalisation, such as the Annex on this issue
of GATS, which states:
2. Domestic regulation.
(. . .)
(b) Nothing in the Agreement shall be constructed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential
proprietary information in the possession of public entities.
Somewhat equivalent texts can be found in many free trade and economic
cooperation agreements, always preserving the state jurisdiction in this regard. As
a matter of fact, some degree of protection of identity and sensitive financial
18 JPN-SIN FTA, Article 69: “General Exceptions under Chapter 7. 1. Subject to the requirement
that such measures are not applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination on trade in services between the Parties, nothing in this Chapter shall be
constructed to prevent the adoption or enforcement by either Party of measures: (. . .) (c) necessary
to secure compliance with laws or regulations which are not inconsistent with the provisions of this
Chapter including those relating to: (. . .) (ii) the protection of the privacy of individuals in relations
to the processing and dissemination of personal data and the protection of confidentiality of
individual records and accounts;”
19 JPN-SIN FTA, Article 83: identical wording as Article 69, quoted above.
20 JPN-SIN FTA, Article 95: identical wording as Article 69, quoted above.
492
J. A. F. Costa