means of arbitrary or unjustifiable discrimination”.
35 The Japan-Australia FTA
(2015),
36 the Japan-Mongolia FTA (2016),
37 and the Singapore-Australia FTA
(2017)
38 regulate the issue similarly. Exceptions are also provided for in the
35 EU-Chile FTA, Article 122: “Data processing in the financial services sector.1. Each Party shall
permit a financial service supplier 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
ordinary course of business of such financial service supplier. 2. Where the information referred to
in paragraph 1 consists of or contains personal data, the transfer of such information from the
territory of one Party to the territory of the other Party shall take place in accordance with the
domestic law regulating the protection of individuals with respect to the transferring and processing
of personal data of the Party out of whose territory the information is transferred”; Article
135 (1) (e) (ii): “Exceptions. 1. Subject to the requirement that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiable discrimination between the
Parties where like conditions prevail, or a disguised restriction on trade in services, financial
services or establishment, nothing in this Title shall be construed to prevent the adoption or
enforcement by either Party of measures: (e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Title including those relating to: (ii) the
protection of the privacy of individuals in relation to the processing and dissemination of personal
data and the protection of confidentiality of individual records and accounts.”
36 JPN-AUT FTA, Article 11.6: “Transfers of Information and Processing of Information Neither
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 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 this
Chapter and Chapters 9 (Trade in Services) and 14 (Investment).”
37 JPN-MNG FTA, Annex 4 to Chapter 7, Article 11: “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 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 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 7 or the Annexes referred to therein.”
38 SIN-AUT FTA, Chapter 9, Annex 9-B, Section B: “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 if such processing is required in the institution’s ordinary course of business.
Nothing in this Section restricts the right of a Party to adopt or maintain measures to: (a) protect
personal data, personal privacy and the confidentiality of individual records and accounts; or
(b) require a financial institution to obtain prior authorisation from the relevant regulator to
designate a particular enterprise as a recipient of such information, based on prudential considerations, provided that this right is not used as a means of avoiding the Party’s commitments or
obligations under this Section.”
Data Protection in International Trade Law
497
35 The Japan-Australia FTA
(2015),
36 the Japan-Mongolia FTA (2016),
37 and the Singapore-Australia FTA
(2017)
38 regulate the issue similarly. Exceptions are also provided for in the
35 EU-Chile FTA, Article 122: “Data processing in the financial services sector.1. Each Party shall
permit a financial service supplier 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
ordinary course of business of such financial service supplier. 2. Where the information referred to
in paragraph 1 consists of or contains personal data, the transfer of such information from the
territory of one Party to the territory of the other Party shall take place in accordance with the
domestic law regulating the protection of individuals with respect to the transferring and processing
of personal data of the Party out of whose territory the information is transferred”; Article
135 (1) (e) (ii): “Exceptions. 1. Subject to the requirement that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiable discrimination between the
Parties where like conditions prevail, or a disguised restriction on trade in services, financial
services or establishment, nothing in this Title shall be construed to prevent the adoption or
enforcement by either Party of measures: (e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Title including those relating to: (ii) the
protection of the privacy of individuals in relation to the processing and dissemination of personal
data and the protection of confidentiality of individual records and accounts.”
36 JPN-AUT FTA, Article 11.6: “Transfers of Information and Processing of Information Neither
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 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 this
Chapter and Chapters 9 (Trade in Services) and 14 (Investment).”
37 JPN-MNG FTA, Annex 4 to Chapter 7, Article 11: “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 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 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 7 or the Annexes referred to therein.”
38 SIN-AUT FTA, Chapter 9, Annex 9-B, Section B: “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 if such processing is required in the institution’s ordinary course of business.
Nothing in this Section restricts the right of a Party to adopt or maintain measures to: (a) protect
personal data, personal privacy and the confidentiality of individual records and accounts; or
(b) require a financial institution to obtain prior authorisation from the relevant regulator to
designate a particular enterprise as a recipient of such information, based on prudential considerations, provided that this right is not used as a means of avoiding the Party’s commitments or
obligations under this Section.”
Data Protection in International Trade Law
497