Regulating Cross-Border Data Flows under the AfCFTA Protocol on Digital Trade:

The What, Why, How, Where and When

Alexander Beyleveld and Franziska Sucker

 

ABSTRACT: African Continental Free Trade Area (AfCFTA) State Parties are currently negotiating a Protocol on Digital Trade. It seems likely that negotiators will at least be considering whether to include rules on cross-border data flows (CBDFs) in the Protocol. To this end, we argue that negotiators must try to answer five questions when negotiating rules of this kind: (i) What? Clarity is required on what exactly is being regulated; (ii) Why? Negotiators must have a good sense of the rationales underlying any regulation; (iii) How? There is a need for understanding how to achieve these rationales; (iv) Where? While the Protocol seems like the most natural fit for rules on CBDFs, it must be contemplated whether some relevant issues are not better regulated elsewhere; and (v) When? Clarity is needed at what point in time it can be said that concluding rules on CBDFs becomes a worthwhile pursuit. We elaborate on what we view as some of the most important considerations in relation to each of these questions. Ultimately, we conclude that AfCFTA State Parties should not rush to conclude a set of binding international rules on CBDFs that may be incongruent with their developmental needs.