Data and Digital Trade Law

The report examines the tension between domestic data governance—driven by privacy, security, and industrial policy—and international trade rules. It argues that while data flows are essential for the global economy, the current legal architecture often reinforces structural asymmetries, where developing nations export raw data but import high-value services. The author analyzes the shift from WTO-led rules to preferential trade agreements (PTAs) and digital economy agreements (DEAs), highlighting the AfCFTA Digital Trade Protocol as a development-oriented model. The report concludes that developing countries must move beyond the binary of 'free flow vs. localization' toward calibrated, regional strategies that link trade commitments to implementation capacity and technology transfer.

• Data is a critical enabler of global trade, facilitating the 'servicification' of trade where data-intensive services are embedded into manufactured 'smart' goods and corporate business models.
• Governments use data governance to pursue diverse objectives, including privacy protection, cybersecurity, national security, and economic security, the latter of which is increasingly framed as a tool to protect competitiveness from geopolitical risks.
• Mandatory data localization does not automatically lead to domestic value creation or industrialization because value in the digital economy is primarily captured by platforms, algorithms, and intellectual property controlled by global firms.
• International trade law is shifting away from the WTO framework toward PTAs and DEAs, which often include binding provisions to allow cross-border data flows and prohibit mandatory localization of computing facilities.
• The AfCFTA Digital Trade Protocol (DTP) represents an innovative 'economic regionalism' approach by including mechanisms tailored to underrepresented groups and pooling regional resources for infrastructure.
• Developing countries and LDCs face a 'data poverty trap' and asymmetrical value capture, where they act as net exporters of raw data while remaining importers of high-value data-driven technologies.
• There is a significant gap between the binding digital trade commitments undertaken by developing countries and their actual institutional, technical, and human capacity to implement them.
• The 'geoeconomic turn' is leading to the securitization of data, where flows are restricted based on techno-nationalist rivalry and 'de-risking' rather than trust-based safeguards, potentially fragmenting the digital economy into competing blocs.

APA

Maciel, M. (2026). Data and Digital Trade Law. International Institute for Sustainable Development. https://www.iisd.org/system/files/2026-04/data-digital-trade-law.pdf

Chicago

Maciel, Marilia. Data and Digital Trade Law. International Institute for Sustainable Development, 2026. https://www.iisd.org/system/files/2026-04/data-digital-trade-law.pdf.

Wikipedia

{{cite report |last1=Maciel |first1=Marilia |title=Data and Digital Trade Law |publisher=International Institute for Sustainable Development |date=April 2026 |url=https://www.iisd.org/system/files/2026-04/data-digital-trade-law.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{maciel2026data, author = {Maciel, Marilia}, title = {{Data and Digital Trade Law}}, institution = {International Institute for Sustainable Development}, year = {2026}, month = apr, url = {https://www.iisd.org/system/files/2026-04/data-digital-trade-law.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }