9 Discussion
From a very general perspective, it is possible to distribute the data protection
aspects of trade agreements into three groups roughly linked to patterns fostered
by the major players of the international economic and legal overlapping arenas:
(a) the European group, focusing on the protection of personal data as a fundamental
right and interest in spread worldwide the high standards adopted within the EU;
(b) the American group, focusing on freedom of trade, regarding privacy issues as
something to be dealt with private regulation and market; and (c) the less radical
options in agreements among other players, especially Latin American and Pacific
basin countries.
An imaginary ideal European agreement would reinforce the internal standards of
the EU in international instruments that effectively oblige the other Parties. Not
surprisingly, it is the case of the EEA, since EFTA Members reproduce in their
internal law not only the original standards from the time of the Agreement, but they
also incorporate virtually all new changes set by European decisions, directives and
regulations.
Recent European agreements, such as the EU-CAN CETA (2017) and the EU
Agreements signed in 2014, use a general exception for key chapters (cross-border
services, financial services, entry and stay of persons, maritime transports, telecommunications, electronic commerce, investments etc.). This makes it very clear that
domestic privacy protection rules that affect trade flows are, prima facie, legitimate
and cannot be considered as a breach of the treaties unless they are “means of
arbitrary or unjustifiable discrimination” or “a disguised restriction”.
American agreements also protect the domestic jurisdiction on issues related to
data protection and privacy. Most of the United States treaties’ texts fail to make an
express reference to privacy or data protection either in their chapters on electronic
commerce, or in any other specific chapter or section. Therefore, whenever measures
on protection of personal data do affect trade, they are supposed to be evaluated by
regular standards, with no special status.
Other agreements vary between the European and American poles, but except for
a handful, they do not address the issue. There are no special cases that propose
substantially differential solutions.
In the three studied dimensions—special section, financial services and electronic
commerce—the presence of a separate chapter or isolated reference to personal data
protection standards is specific to European texts. Financial services are regulated in
very similar ways throughout the whole sample. Electronic commerce presents the
highest variance of dispositions and tried solutions, as it is to be described in the
sessions below.
Data Protection in International Trade Law
513
From a very general perspective, it is possible to distribute the data protection
aspects of trade agreements into three groups roughly linked to patterns fostered
by the major players of the international economic and legal overlapping arenas:
(a) the European group, focusing on the protection of personal data as a fundamental
right and interest in spread worldwide the high standards adopted within the EU;
(b) the American group, focusing on freedom of trade, regarding privacy issues as
something to be dealt with private regulation and market; and (c) the less radical
options in agreements among other players, especially Latin American and Pacific
basin countries.
An imaginary ideal European agreement would reinforce the internal standards of
the EU in international instruments that effectively oblige the other Parties. Not
surprisingly, it is the case of the EEA, since EFTA Members reproduce in their
internal law not only the original standards from the time of the Agreement, but they
also incorporate virtually all new changes set by European decisions, directives and
regulations.
Recent European agreements, such as the EU-CAN CETA (2017) and the EU
Agreements signed in 2014, use a general exception for key chapters (cross-border
services, financial services, entry and stay of persons, maritime transports, telecommunications, electronic commerce, investments etc.). This makes it very clear that
domestic privacy protection rules that affect trade flows are, prima facie, legitimate
and cannot be considered as a breach of the treaties unless they are “means of
arbitrary or unjustifiable discrimination” or “a disguised restriction”.
American agreements also protect the domestic jurisdiction on issues related to
data protection and privacy. Most of the United States treaties’ texts fail to make an
express reference to privacy or data protection either in their chapters on electronic
commerce, or in any other specific chapter or section. Therefore, whenever measures
on protection of personal data do affect trade, they are supposed to be evaluated by
regular standards, with no special status.
Other agreements vary between the European and American poles, but except for
a handful, they do not address the issue. There are no special cases that propose
substantially differential solutions.
In the three studied dimensions—special section, financial services and electronic
commerce—the presence of a separate chapter or isolated reference to personal data
protection standards is specific to European texts. Financial services are regulated in
very similar ways throughout the whole sample. Electronic commerce presents the
highest variance of dispositions and tried solutions, as it is to be described in the
sessions below.
Data Protection in International Trade Law
513