Regulating Data in a Fragmented World: Any Scope for Multilateral Cooperation, or a Path Towards Regulatory De-coupling?

This article explores the technical and legal complexities surrounding the regulation of cross-border data flows, including through data localization measures and source code disclosure requirements, within the World Trade Organization (WTO) legal framework. Despite these issues initially being central to the WTO’s Work Programme and the Joint Statement Initiative (JSI) on ecommerce, no consensus could be reached on how they should be regulated at a multilateral level. The article explains how these issues fit within the current WTO rules and proposes options for future multilateral cooperation on these issues. This proposal takes into account significant differences in how data-related subjects are addressed under domestic law of the key players on the global digital market, such as the United States, the European Union (EU), and China. It also considers these Members’ very different interests in multilateral and regional negotiations on data governance.