Chapter 6 Restrictions on cross-border data transfers
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The evolution of the digital economy has led to a range of new policy challenges, particularly in relation to the regulation of cross-border data flows. This chapter examines how the existing principles of international trade and investment law - particularly those relating to non-discrimination, reasonableness and necessity testing - are helpful in dealing with data restrictions that affect several sectors of the economy. Broad principles such as reasonableness and non-discrimination provide useful, general standards by which to assess measures that restrict cross-border transfers of data, while necessity testing plays an important role in preventing abuse of the exceptions clauses that could be invoked to justify measures that may otherwise be inconsistent with trade and investment obligations. However, as many of the provisions of international economic law are dated, they need to be interpreted in light of contemporary realities of digitalisation. The drafting of new treaties offers opportunities for general principles of international economic law to be thoughtfully translated into rules for the modern digital economy, as has been done in the CPTPP.

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