Trade agreements: impacts on national law
Author
Prof. Mira Burri
University of Lucerne
Interview with the principal investigator of this NRP75 project.
What was the aim of your project “Regulating Big Data in trade agreements”?
The starting point of the project was clearly defined and referred to the current state of law- and policymaking, which tended to only marginally explore the governance of data in trade agreements and indeed failed to thematize the implications of Big Data and Big Data analytics on the economy and the broader effects across all societal contexts. It has been thus the project’s purpose to fill these gaps in the scholarly literature as well as to contribute to contemporary policymaking by tackling few distinct but also interlinked tasks:
- Provide a comprehensive analysis of the existing rules in the law of the World Trade Organization (WTO) and of the web of preferential trade agreements (PTAs) that affect (a) the use of Big Data and (b) the regulatory space available to states to set and modify regulatory frameworks for Big Data domestically.
- Identify the emerging design with regard to data-related rules and their diffusion globally, highlighting the differences in regulatory approaches across jurisdictions and how they matter for data flows and their regulation.
- Explore the interplay between international data-relevant commitments and domestic policy initiatives.
- Make recommendations as to regulatory models for the governance of data in trade agreements.
What were the results?
In the course of the project, we were able to address all tasks in the original research design and deliver substantial scholarly work, which also found appropriate dissemination in academic and policy circles. The relevance of project was strengthened by the ongoing developments under the umbrella of the WTO and in the growing number of PTAs, which proved that the data-driven economy has become a major negotiation topic in trade venues, as well as domestically. This triggered heightened interest towards unbiased, up-to-date, and evidence-based research on digital trade law and policy and accordingly enhanced the positioning of the project’s work.
In addressing the project’s first objective, we collected all PTAs concluded since 2000 up to the end of the project in 2021, which amounted to some 370+ agreements. For the purpose of mapping the specific provisions of these treaties that are relevant for data governance, a tailored codebook with more than 90 different categories was developed and applied to each agreement. The resulting dataset entitled TAPED: Trade Agreements Provisions on Electronic Commerce and Data, together with the codebook, are made available online at the University of Lucerne’s website and as part of the Lucerne research repository under the creative commons licence (attribution, non-commercial, share-alike) and thus are open to further use. TAPED has been important to the project’s own research activities, including both PhD projects, but has also been used by the WEF, the OECD, the UK Department of Trade, the Washington-based Data Governance Hub, and researchers in the areas of economics, law and international relations.
What was a special highlight?
A key research result and a highlight of the entire project has been the publication of the volume “Big Data and Global Trade Law” with Cambridge University Press in 2021. The collection explores the relevance of global trade law for data, Big Data, and cross-border data flows. Contributing authors from different disciplines including law, economics and political science analyse developments at the WTO and in preferential trade venues by asking what future-oriented models for data governance are available and viable in the area of trade law and policy. The collection paints the broad picture of the interaction between digital technologies and trade regulation, as well as provides in-depth analyses of critical to the data-driven economy issues, such as privacy and AI, as well as covers different countries’ perspectives.
Fortunately, I have recently won an ERC consolidator grant for the project “TRADE LAW 4.0: Trade Law for the Data-Driven Economy”, which started on 1 September 2021 and will be able, building upon the NRP75 project, to continue doing research in this exciting and ever more important area of law and policy (www.digitaltradelaw.ch).
What are the main messages of the project?
- It is vital to acknowledge the importance of trade regulation for data-driven economies and data-driven innovation more generally.
- The regulation of (Big) Data and all that is linked to it, including non-trade issues should not be regulated in a manner that hinders international trade and there should be an adequate balance between safeguarding certain important societal interests and curbing digital protectionism.
- It should be a goal to attain convergence regarding privacy and data flows and move towards multilateral regulation of digital trade. Switzerland, similarly to the EU, could play an important role in this process.
Does your project have any scientific implications?
The scientific implications of our project are multiple. In terms of output, our dataset is certainly a valuable resource that, as available open access, can contribute to development of different strands of research in different disciplines. The research done under the project, in particular on the state of digital trade regulation across different states and topics, as well as on the different regulatory templates for the digital economy, has been well acknowledged by the academic community and has contributed to our positioning as a hub on digital trade law and policy.
In terms of future developments, our own analysis of the data has shown that trade agreements are the most important venue to date to regulate data issues on the international level. However, the specific political economy constellation with the EU, the US and China leads to a very heterogenous pool of norms, while WTO negotiations remain difficult. Nevertheless, the WTO is still important as a multilateral forum with high level of legalization and broad membership, which can potentially better reflect the demands of a seamless digital economy and provide for a higher level of equity. The next years will show how the governance environment will evolve – in particular, as contestations around privacy protection continue, as we have new dedicated digital trade agreements and a repositioning of major actors, such as the EU, the UK and China. The needs for regulatory cooperation are clearly enhanced in the era of Big Data and artificial intelligence but there is uncertainty as to whether these needs can be satisfied given the current political economy. The regulation of non-economic interests is also likely to become more pertinent, as domestic constituencies demand solutions that can adequately protect their interests at home as well as abroad.
Does your project have any policy recommendations?
Policymakers should use the tools of trade agreements to advance the liberalization of digital trade and support data-driven innovation, while making sure that policy space is adequately granted. The WTO as well as PTAs can be used as channels of governance and policymakers can calibrate their commitments. There is room for regulatory innovation, as shown by the recent digital economy dedicated deals. Switzerland as a highly innovative industrialized economy has so far been rather conservative in these discussions and this should change. There should be more transparency and a raised awareness about the impact of trade agreements on data-driven societies.