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Abstract

The digital economy underpinned by data flows is critical for modern day business and commerce. However, concerns around cyberattacks, privacy and domestic industry growth opportunities exist as well. This thesis explores the interaction between domestic legal regimes governing data, particularly cross border data flows, with international trade law. It is estimated that 71% countries have domestic regulations governing data protection and 62 countries have laws on data localization. While the nature and purpose behind such data localisation laws, it restricts cross-border movement of data. Thereby such laws impact international trade. The thesis analyses whether these laws are in violation of the particular State’s existing trade law commitments, under multilateral WTO rules as well as preferential trade agreements. The thesis maps the different stages in cross-border movement of data. Thereafter it analyses how each of these stages interacts with international trade as well as the different types of restrictions that are typically imposed by States at each stage. This helps to study the compatibility of such measures with the respective states’ commitments under international trade law. While the WTO commitments were negotiated mostly during the pre-Internet era, relevant preferential trade agreements were signed post the development of the digital economy when awareness of the benefits and challenges related to data flows had begun to emerge. Yet, the thesis finds that often domestic measures are incompatible with their international commitment. The thesis concludes with recommendations for States that can help align domestic and international needs.

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