Transatlantic Data Flows and Digital Trade Post-Brexit: Trade-Offs, Triangles and Trysts

Before Schrems II, Transatlantic data flows constituted of the largest and most sophisticated regulated regimes in the globe- e.g. as to the EU-US Privacy Shield, covering over one billion consumers and citizens.Digital trade is at one of its most significant stages ever, as the world shifted to wholesale digitisation in the COVID-19 era yet with WTO rules outdated and significant movements towards global digital privacy in the absence of corresponding global rules. Digital trade did not fall part of the EU-US trade talks ongoing for several years but has been a key dimension of the UK-US negotiations and relatively occupies a relatively modest place in the EU-UK Trade and Cooperation Agreement (TCA). Yet can digital trade unite the transatlantic relationship, even post-Brexit or just divide? The UK has made significant efforts to obtain an adequacy decision from the EU but also proposes to diverge from EU data rules whilst keeping the GDPR. Can the UK evade the reach of EU data law? Can the US avoid adopting ‘a’ GDPR? Or is it veering in such a direction? How does the Schrems II and Privacy International CJEU decisions affect the UK adequacy decision? Digital Service Taxes currently fall outside of trade agreements yet are complex background instruments. How do developments as to digital services taxes impact on trade agreements? The talk considers the place of transatlantic data and digital trade as a triangle of inter-connecting relations. Do high standards uniquely unify the future of transatlantic relations of the UK-EU-US? Is the force of the EU as a global data actor limited by turns to data localisation or do its high standards suggest more ‘Brussels Effect’ can be anticipated as likely? It argues that data and digital trade uniquely unify the transatlantic constellation of the post-Brexit EU. However, recently CJEU decisions increasingly champion data localisation and exceptionalism which will become harder to implement and even harder to export beyond its current state. The ‘Brussels Effect’ of EU data law in particularly is arguably somewhat dependent upon the UK acceptance of EU rules as much as Facebook’s adoption of the GDPR and championing of a global GDPR. Has it reached a high-water mark in the era of EU digital sovereignty? The case study of Brexit occupies much about contemporary digital trade: trade-offs, triangles and trysts.

Professor Fahey has been an Emile Nöel Fellow at New York University Law School, and held visiting positions, among others, at Keio University Law School (Tokyo, Japan), the EUI (Florence, Italy), and iCourts (Copenhagen, Denmark). Her research lies in the relationship beween EU Law and global governance, trade, translatic relations, the EU's Area of Freedom, Security and Justice, and study of law beyond the State. Elaine has received numerous grants, including Marie Curie grants, ERSC grants, British Academy grants and Leverhulme grants.