The India-Singapore CE CA (2005),
31 the Japan-Switzerland (2009)
32 and the
Korea-Vietnam FTA (2015)
33 also protect the transfer of data necessary to business,
although they reserve the right of Parties to regulate the issue as far as they do not
circumvent the Agreement. The Korea-Australia FTA (2014) also admits both the
need of transfer and the right to regulate of parties to “protect sensitive information
of customers”.
34
The EU-Chile FTA (2005) provides for a general permission of transfer whenever
it is consistent with the ordinary course of business, although the domestic legal
protection of privacy shall prevail. There is no express reference to international
standards, which allows the construction of the agreement as recognising an
almost boundless State jurisdiction on this issue. However, the provisions on
exceptions make it clear that measures on data protection cannot constitute “a
31 IND-SIN CECA, Annex 7C, Article 6: “No Party shall take measures that prevent transfers of
information or the processing of financial information, including transfers of data by electronic
means, or that, subject to importation rules consistent with international agreements, prevent
transfers of equipment, where such transfers of information, processing of financial information
or transfers of equipment are necessary for the conduct of the ordinary business of a financial
service supplier. Nothing in this paragraph restricts the right of a Party to protect personal data,
personal privacy and the confidentiality of individual records and accounts so long as such right is
not used to circumvent the provisions of this Agreement.”
32 JPN-SWI FTA, Annex VI—Financial Services, Article VIII “Transfers of Information and
Processing of Information. Neither Party shall take measures that prevent transfers of information
into or out of its Area or the processing of financial information, including transfers of data by
electronic means, or that, subject to importation rules consistent with international agreements,
prevent transfer of financial information, processing of financial information or transfers of equipment are necessary for the conduct of the ordinary business of a financial service supplier of the
other Party. Nothing in this Article restricts the right of a Party to protect personal data, personal
privacy and the confidentiality of individual records and accounts so long as such right is not used to
circumvent the provisions of Chapter 6.”
33 KOR-VNM FTA, Annex 8-A, Article 6: “Data Protection. (a) Each Party shall permit a financial
service supplier of the other Party established in its territory to transfer information in electronic or
other form, into and out of its territory, for data processing where such processing is required in the
ordinary course of business of such financial service supplier. (b) Nothing in subparagraph
(a) restricts the right of a Party to adopt or maintain measures to protect personal data, personal
privacy, and to require a financial service supplier to obtain prior authorization from the relevant
regulator to transfer such information, based on prudential considerations.”
34 KOR-AUT FTA, Annex 8-B, Section A: “Transfer of information: 1. Each Party shall allow a
financial institution of the other Party to transfer information in electronic or other form, into and out
of its territory, for data processing where such processing is required in the institution’s ordinary
course of business. Korea shall give effect to this commitment no later than two years after the date
of entry into force of this Agreement, and in no case later than the effective date of similar
commitments stemming from other international trade agreements. 2. Nothing in paragraph
1 shall restrict the right of a Party to protect sensitive information of consumers and to prohibit
unauthorised reuse of such information so long as such right is not used as a means of avoiding the
Party’s commitments or obligations under this Agreement. The Parties reserve the right of their
financial regulators to have access to records of financial services suppliers relating to the handling
of such information and to require for the location of technology facilities.”
496
J. A. F. Costa
31 the Japan-Switzerland (2009)
32 and the
Korea-Vietnam FTA (2015)
33 also protect the transfer of data necessary to business,
although they reserve the right of Parties to regulate the issue as far as they do not
circumvent the Agreement. The Korea-Australia FTA (2014) also admits both the
need of transfer and the right to regulate of parties to “protect sensitive information
of customers”.
34
The EU-Chile FTA (2005) provides for a general permission of transfer whenever
it is consistent with the ordinary course of business, although the domestic legal
protection of privacy shall prevail. There is no express reference to international
standards, which allows the construction of the agreement as recognising an
almost boundless State jurisdiction on this issue. However, the provisions on
exceptions make it clear that measures on data protection cannot constitute “a
31 IND-SIN CECA, Annex 7C, Article 6: “No Party shall take measures that prevent transfers of
information or the processing of financial information, including transfers of data by electronic
means, or that, subject to importation rules consistent with international agreements, prevent
transfers of equipment, where such transfers of information, processing of financial information
or transfers of equipment are necessary for the conduct of the ordinary business of a financial
service supplier. Nothing in this paragraph restricts the right of a Party to protect personal data,
personal privacy and the confidentiality of individual records and accounts so long as such right is
not used to circumvent the provisions of this Agreement.”
32 JPN-SWI FTA, Annex VI—Financial Services, Article VIII “Transfers of Information and
Processing of Information. Neither Party shall take measures that prevent transfers of information
into or out of its Area or the processing of financial information, including transfers of data by
electronic means, or that, subject to importation rules consistent with international agreements,
prevent transfer of financial information, processing of financial information or transfers of equipment are necessary for the conduct of the ordinary business of a financial service supplier of the
other Party. Nothing in this Article restricts the right of a Party to protect personal data, personal
privacy and the confidentiality of individual records and accounts so long as such right is not used to
circumvent the provisions of Chapter 6.”
33 KOR-VNM FTA, Annex 8-A, Article 6: “Data Protection. (a) Each Party shall permit a financial
service supplier of the other Party established in its territory to transfer information in electronic or
other form, into and out of its territory, for data processing where such processing is required in the
ordinary course of business of such financial service supplier. (b) Nothing in subparagraph
(a) restricts the right of a Party to adopt or maintain measures to protect personal data, personal
privacy, and to require a financial service supplier to obtain prior authorization from the relevant
regulator to transfer such information, based on prudential considerations.”
34 KOR-AUT FTA, Annex 8-B, Section A: “Transfer of information: 1. Each Party shall allow a
financial institution of the other Party to transfer information in electronic or other form, into and out
of its territory, for data processing where such processing is required in the institution’s ordinary
course of business. Korea shall give effect to this commitment no later than two years after the date
of entry into force of this Agreement, and in no case later than the effective date of similar
commitments stemming from other international trade agreements. 2. Nothing in paragraph
1 shall restrict the right of a Party to protect sensitive information of consumers and to prohibit
unauthorised reuse of such information so long as such right is not used as a means of avoiding the
Party’s commitments or obligations under this Agreement. The Parties reserve the right of their
financial regulators to have access to records of financial services suppliers relating to the handling
of such information and to require for the location of technology facilities.”
496
J. A. F. Costa