7.2 Treatment of Certain Information
Most agreements provide in their chapters on financial services that nothing in them
creates any duty of the Parties to offer access to sensitive information, notably data
“related to the financial affairs and accounts of an individual customer” or “confidential information (. . .) of a particular enterprise”. These provisions are often
reinforced by general references to the consistency of the FTA with WTO system,
particularly the GATS Annex on financial services, which reserves the jurisdiction in
this field to domestic authorities.
Although these provisions cover personal data, there is no special reference to
privacy. In fact, the function of these provisions is to make it clear that the Parties in
the agreement keep their jurisdiction and control over the legislative and administrative aspects of the regime of confidentiality of private costumers. With little
wording differences this is also the case of the Canada-Peru FTA (2009),
48 the
Canada-Panama FTA (2013),
49 the Costa Rica-Colombia FTA (2016),
50 the
CAFTA-Dominican Republic (2006),
51 the Korea-United States FTA (2012),
52 the
performed in conformity to the domestic law on protection of persons regarding the transfer and
processing of personal data from the Party in which or from which territory the information is
transferred.” (My translation.)
48 CAN-PER FTA, Chapter 11, Article 1107: “Nothing in this Chapter requires a Party to furnish or
allow access to: a. information related to the financial affairs and accounts of individual customers
of financial institutions or cross-border financial service suppliers; or b. any confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public
interest or prejudice legitimate commercial interests of particular enterprises.”
49 CAN-PAN FTA, Chapter 12, Article 12.8: “This Chapter does not require a Party to furnish or
allow access to: information related to the financial affairs and accounts of an individual customer of
a financial institution or a cross-border financial service supplier; or confidential information which
if disclosed would impede law enforcement or otherwise be contrary to the public interest or
prejudice legitimate commercial interests of a particular enterprise.”
50 CTR-COL FTA, Chapter 14, Article 14.7: “This Chapter does not require a Party to furnish or
allow access to: information related to the financial affairs and accounts of an individual customer of
a financial institution or a cross-border financial service supplier; or confidential information which
if disclosed would impede law enforcement or otherwise be contrary to the public interest or
prejudice legitimate commercial interests of a particular enterprise.” Though there is no official
translation of the Spanish text, the text of the CAN-PAN FTA uses the text hereby transcribed as
corresponding to the Spanish wording that is identical to the COL-PAN FTA.
51 CAFTA-DR, Chapter 12, Article 12.7: “Nothing in this Chapter requires a Party to furnish or
allow access to: (a) information related to the financial affairs and accounts of individual customers
of financial institutions or cross-border financial service suppliers; or (b) any confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public
interest or prejudice legitimate commercial interests of particular enterprises.”
52 KOR-USA FTA, Chapter 13, Article 13.7: “Treatment of certain information. Nothing in this
Chapter requires a Party to furnish or allow access to: (a) information related to the financial affairs
and accounts of individual customers of financial institutions or cross-border financial service
suppliers; or (b) any confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or prejudice legitimate commercial interests of
particular enterprises.”
500
J. A. F. Costa
Most agreements provide in their chapters on financial services that nothing in them
creates any duty of the Parties to offer access to sensitive information, notably data
“related to the financial affairs and accounts of an individual customer” or “confidential information (. . .) of a particular enterprise”. These provisions are often
reinforced by general references to the consistency of the FTA with WTO system,
particularly the GATS Annex on financial services, which reserves the jurisdiction in
this field to domestic authorities.
Although these provisions cover personal data, there is no special reference to
privacy. In fact, the function of these provisions is to make it clear that the Parties in
the agreement keep their jurisdiction and control over the legislative and administrative aspects of the regime of confidentiality of private costumers. With little
wording differences this is also the case of the Canada-Peru FTA (2009),
48 the
Canada-Panama FTA (2013),
49 the Costa Rica-Colombia FTA (2016),
50 the
CAFTA-Dominican Republic (2006),
51 the Korea-United States FTA (2012),
52 the
performed in conformity to the domestic law on protection of persons regarding the transfer and
processing of personal data from the Party in which or from which territory the information is
transferred.” (My translation.)
48 CAN-PER FTA, Chapter 11, Article 1107: “Nothing in this Chapter requires a Party to furnish or
allow access to: a. information related to the financial affairs and accounts of individual customers
of financial institutions or cross-border financial service suppliers; or b. any confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public
interest or prejudice legitimate commercial interests of particular enterprises.”
49 CAN-PAN FTA, Chapter 12, Article 12.8: “This Chapter does not require a Party to furnish or
allow access to: information related to the financial affairs and accounts of an individual customer of
a financial institution or a cross-border financial service supplier; or confidential information which
if disclosed would impede law enforcement or otherwise be contrary to the public interest or
prejudice legitimate commercial interests of a particular enterprise.”
50 CTR-COL FTA, Chapter 14, Article 14.7: “This Chapter does not require a Party to furnish or
allow access to: information related to the financial affairs and accounts of an individual customer of
a financial institution or a cross-border financial service supplier; or confidential information which
if disclosed would impede law enforcement or otherwise be contrary to the public interest or
prejudice legitimate commercial interests of a particular enterprise.” Though there is no official
translation of the Spanish text, the text of the CAN-PAN FTA uses the text hereby transcribed as
corresponding to the Spanish wording that is identical to the COL-PAN FTA.
51 CAFTA-DR, Chapter 12, Article 12.7: “Nothing in this Chapter requires a Party to furnish or
allow access to: (a) information related to the financial affairs and accounts of individual customers
of financial institutions or cross-border financial service suppliers; or (b) any confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public
interest or prejudice legitimate commercial interests of particular enterprises.”
52 KOR-USA FTA, Chapter 13, Article 13.7: “Treatment of certain information. Nothing in this
Chapter requires a Party to furnish or allow access to: (a) information related to the financial affairs
and accounts of individual customers of financial institutions or cross-border financial service
suppliers; or (b) any confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or prejudice legitimate commercial interests of
particular enterprises.”
500
J. A. F. Costa