Although positively received by a wide range of countries which recognize the potential economic and social benefits of enabling a greater cross-border flow of data, it is not easy to introduce common legal frameworks to ensure DFFT. Countries often have varied domestic and regional legal frameworks due to different concepts of privacy or data security.

The G7 did put digital policy at the centre of its 2021 agenda, discussing broad digital and technology shifts from physical infrastructure such as 5G, future communication technologies, and technical standards to soft infrastructure, such as rule-making on data flow and internet safety principles. And one notable outcome was the establishment of the G7 Roadmap for Cooperation on Data Free Flow with Trust at the G7 Digital and Technology Ministers’ meeting in April 2021 – also endorsed by two of the G7’s guest countries South Korea and Australia.

But despite shared democratic values of open and competitive markets, strong safeguards for human rights, and fundamental freedoms, the G7 and its partners have different ideas on how best to approach DFFT, and so greater UK-EU-Japan policy coordination to overcome any inconsistencies in approach can play a key role.

UK using soft power

Brexit gave the UK an opportunity to refresh its approach to DFFT, having previously adhered to the European Union (EU) general data protection regulation (GDPR). The UK’s Integrated Review of Security, Defence, Development and Foreign Policy has since set out a number of priority actions, such as promotion of the international flow of data to enable secure, trusted, and interoperable exchange across borders.

The UK is clearly trying to use its ‘soft power’ by establishing regulatory influence – as well as including data flows in trade deals, it is making ‘adequacy decisions’ with priority countries deemed to have suitable and robust safeguards of data. The UK-Japan comprehensive economic partnership agreement (CEPA) – the UK’s first post-Brexit trade deal – includes bans on unjustified restrictions of cross-border electronic information transfers for business purposes, and on unjustified requirements to use or locate computing facilities in the countries in which business is conducted (this is known as ‘data localization’, a barrier to the free cross-border flow of data).

These changes mark a huge step-up from the arrangements made under the earlier EU-Japan trade deal, but it remains to be seen how the UK will adopt DFFT frameworks with broader trade partners in Asia, including via the CPTPP.

The G7 Roadmap – which the UK will lead – aims to deliver tangible outcomes on digital policy while being mindful of harmonization with the efforts of other international forums such as the G20 and Organisation for Economic Co-operation and Development (OECD). But if the UK coordinates this harmonization effectively, expect the global formation of a DFFT area to expand dramatically.

Japan’s contribution to DFFT

Japan is another key leader of DFFT and it maintains a rigorous domestic personal data protection and privacy framework which the EU, with its own privacy protection regime considered the toughest in the world, recognizes as adequate to allow data sharing between the two parties.

Japan has also expanded its area of free data flow through trade agreements, incorporating similar provisions to those of the UK-Japan CEPA in the Japan-US digital trade agreement and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The Regional Comprehensive Economic Partnership (RCEP) – the world’s largest free trade bloc of which Japan is a member – has also introduced frameworks for the free flow of data and a ban on data localization, but these frameworks are not as rigorous as those Japan has agreed elsewhere. Implementing parties may decide to ban data flow or enable data localization in exceptional circumstances that other parties are not allowed to dispute – this has generated concern over potential deviations from the original aims of the DFFT framework.

More broadly, there is also often ambiguity over what actually constitutes international standards and principles on data protection which can result in the implementation of slightly different legal frameworks between agreements. For Japan, the ability to set common frameworks with some flexibility has contributed to its engagement with a wider range of parties, including China, in the field of free data flow. But the development of truly common international standards on data protection remains imperative and the challenge of how best this can be advanced through discussion in the international arena continues.

Outside of trade deals, Japan participates in APEC Cross-Border Privacy Rules (CBPR), a government-backed data privacy certification which companies can join to demonstrate compliance with internationally-recognized data privacy protections. The CBPR System implements the APEC Privacy Frameworkendorsed by APEC Leaders in 2005 and updated in 2015.

EU’s rigorous GDPR protection

The EU has supported the UK in leading the G7 to a consensus on international rule-making regarding free flow of data. Using its rigorous GDPR, the EU has cautiously examined the legal frameworks of each of its trade partners and, where necessary, required additional reinforcements to ensure their laws reach a similar level.

So far the EU recognizes only 14 countries – including Japan – as providing adequate protections, although it is in the process of finalizing arrangements with South Korea and the UK. Although this approach secures the same level of protection as cross-border data flow, it takes a much longer path to realize the free flow of data.

The EU-US privacy shield adopted in July 2016 provides another path for transferring data between the two economies as it allows the free transfer of data to any companies certified in the US which adhere to the Privacy Shield Principles issued by US Department of Commerce. The advantage is this does not require reform to the entire legal system but is still able to maintain a level of privacy protection acceptable to the EU.

However, in its judgment of 16 July 2020 the European Court of Justice ruled the Privacy Shield invalid, underscoring the EU’s strict approach to personal data protection and the protection of individual rights. This has created barriers to data transfer between the EU and US which carry important consequences not only for trade but also for law enforcement and national security, and the US hopes to consult with the EU about this.

Despite differences in approach between the UK, EU, and Japan, they do share a common view that data can harness economic prosperity in a digital society. Ultimately the goal is to propose a set of packages to enable secure cross-border free flow of data, including considerations of how it can be regulated in practice across trade and other agreements.

It could be worth examining whether an APEC CBPR-type bodog sportsbook review mechanism could be applicable to Europe. Although not an easy task – particularly given restrictions faced by the EU – increased UK-EU-Japan policy coordination could help identify a realistic balance between free data flow and privacy protection. Collectively, they are capable of creating innovative mechanisms to enable the world to realise DFFT much more quickly and securely.

Hiroki Sekine is visiting fellow with the Asia-Pacific Programme at Chatham House. He was director of the policy and strategy office for financial operations at JBIC from July 2016 until June 2019 and, most recently, senior advisor to the corporate planning department at the Japan Bank for International Cooperation (JBIC).

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Furthermore, among the many wild cards that Beijing could use during the period of political vacuum in the US, opting for trade liberalisation is a great plus for China’s image and probably more relevant in economic terms than any other more aggressive option that the media have been discussing, from Taiwan to the South China Sea.

Still, it is important to note that the RCEP negotiations had been dragging on for eight years and that the final agreement has been watered down in terms of key liberalisation measures.

Not only was the geographical coverage bigger when the negotiations started – it included India – but the scope in terms of liberalisation was also larger. Furthermore, when RCEP started as a response to the Trans-Pacific Partnership (TPP), the US-China strategic competition was just starting, while it is now pulling RCEP members in different directions.

The best example is recent trade friction between China and Australia, but there could be many others. In the same vein, increasingly pervasive US sanctions against targets in China will not help make RCEP a success.

While the US – and Europe – are key losers remaining outside of this deal, the biggest winner might not necessarily be China. China is no doubt bound to benefit, but other members within RCEP may benefit even more.

China will face fewer barriers to exports into the rest of Asia (including e-commerce). But the Association of Southeast Asian Nations, on the one hand, and South Korea and Japan on the other will find it easier to build their value chains, where production is based in ASEAN with Northeast Asian investment.

In fact, ASEAN countries have been receiving an increasing amount of manufacturing FDI (foreign direct investment) from Japan, South Korea and Taiwan, which is already bigger than their FDI into China. Such a sharp increase in investment into ASEAN is not only a response to higher labour costs in China but is also meant to diversify away from an excessively China-centric value chain.

Thanks to this, Japanese, South Korean and Taiwanese trade integration within ASEAN has also been increasing, especially when focusing on intermediate goods. Against this backdrop, ASEAN will likely grow its own manufacturing capacity, thanks to Northeast Asia’s FDI. However, a good chunk of the final demand might still be in China.

In sum, while the actual increase in market access will remain limited among some of the RCEP members (such as Australia and China), the importance of this deal is for the world to realise that Asia is still dependent on the Chinese market and that Asian countries cannot pass on the opportunity of improved (even if still limited) market access into China.

As for the relative losers outside of the deal such as the US, we would imagine that the incoming Joe Biden administration will soon react by engaging in negotiations for a trade deal with Asia.

Alicia García-Herrero is a Senior Fellow at European think-tank BRUEGEL. She is also the Chief Economist for Asia Pacific at Natixis and non-resident Research Fellow at Madrid-based political think tank Real Instituto Elcano.

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The U.S. has shied away from ambitious multilateral pacts in recent years — a stance that might not dramatically change under President-elect Joe Biden. Over in Europe, the U.K. and European Union are running out of time to seal a post-Brexit deal.

Enter RCEP, the world’s biggest trade pact covering about 30% of global gross domestic product and population. Once it comes into force, the signatories — the 10 members of the Association of Southeast Asian Nations plus China, Japan, South Korea, Australia and New Zealand — can expect a host of new business opportunities.

Here are five key takeaways on Asia’s trade megadeal.

RCEP accelerates Asia’s rise

The pact will create a huge Asian economic bloc, with common rules and standards governing not only trade of goods and services but also cross-border investment and e-commerce. This promises to help members grow their own economies while making the region even more attractive to the rest of the world.

“Intra-Asian trade, which is already larger than Asia’s trade with North America and Europe combined, will continue to power global economic growth and pull the economic center of gravity towards Asia,” Stuart Tait, regional head of commercial banking for Asia-Pacific at HSBC, said in a note.

Especially as Asia emerges from the COVID-19 pandemic, RCEP gives American, European and other global companies a fresh reason to invest on this side of the planet.

Thai Prime Minister Prayuth Chan-ocha touched on this at the RCEP summit, saying the pact would create a business environment that is conducive and attractive to investors from around the world, according to a government spokesperson.

Businesses are excited

After the signing, businesses in the 15 countries broadly applauded the deal.

Toyota Motor President Akio Toyoda, in his capacity as chairman of the Japan Automobile Manufacturers Association, released a statement on Monday saying the industry body “welcomes” RCEP.

“For the Japanese automotive industry, which operates on a global scale, the RCEP agreement systematically supports the creation of an advanced value chain in the Asia-Pacific region,” he said.

Japan’s Nikkei Stock Average jumped on Nov. 16, the first trading day after RCEP was signed. (Photo by Tetsuya Kitayama)

Sichuan Hongmeng Zhongtuo Automobile Trading is one Chinese company banking on benefits, according to a Sichuan Daily report on Monday.

The company is among five competitors in Sichuan Province selected for a pilot project to export used cars. “Southeast Asia used to have the highest import tariffs on secondhand cars in the world,” said general manager Li Chuan. “With the implementation of RCEP, Southeast Asia is expected to become the largest export market of used cars for China.”

The mood is similar in Singapore.

Ho Meng Kit, CEO of the Singapore Business Federation, noted that once RCEP kicks in, the city-state’s companies will “enjoy greater flexibility in sourcing from a larger pool of suppliers in the region.”

On Monday, Japan’s Nikkei Stock Average ended up 2.05%, partly on hopes that the deal would accelerate Japanese manufacturers’ exports. South Korea’s Kospi stock index rose 1.97%.

The U.S. is on the outside looking in — again — posing questions for Biden

In 2017, Donald Trump pulled the U.S. out of the Trans-Pacific Partnership, setting a protectionist tone that persists to this day. Now comes RCEP. Can the U.S. expect to grow its presence in the Asian economy without participating in either of the region’s two massive trade pacts?

This is one of the questions Biden will face when he moves into the Oval Office.

“A potential trade policy issue for the next U.S. administration is that the implementation of RCEP will leave the U.S. outside of both RCEP and CPTPP,” said Rajiv Biswas, Asia-Pacific chief economist at IHS Markit, referring to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership — the 11-member version of the TPP.

Trump’s stance proved to be a motivator for RCEP parties to advance their talks. Meanwhile, the platform of Biden’s Democratic Party states that it will not negotiate any new trade deals before first investing in American competitiveness at home.

U.S. President-elect Joe Biden’s Democratic Party has pledged not to negotiate new trade deals before investing in American competitiveness at home — suggesting he might not veer too far from President Donald Trump’s stance. (Source photos by Reuters)

Jeffrey Halley, senior market analyst at Oanda, suggested that by signing RCEP, Asian countries have proved something to themselves. “The fact that the agreement got over the line after eight years of negotiation, between a widely disparate group of nations, is an achievement in itself,” Halley said. “That has left the Asia-Pacific with a feeling that there is life in the world, with or without the U.S.”

Of course, even if their government keeps its distance, U.S. companies can still benefit from RCEP in their Asian operations.

It’s a breakthrough for China and Japan — and ASEAN’s moment to shine

For China, Japan and South Korea, in particular, RCEP is a major milestone. For the first time, East Asia’s big three economies will be connected by a free trade agreement.

Tariffs on 86% of Japanese goods exported to China will be eliminated, for example, up from the current 8%. This promises big benefits for Japanese manufacturers, such as automobile parts suppliers.

China’s Ministry of Finance said in a statement that “China and Japan have reached a bilateral tariff reduction arrangement for the first time, marking a historic breakthrough.” The ministry said countries are creating an environment that “is conducive to promoting a high level of trade liberalization within the region.”

For ASEAN, which already has free trade within the bloc as well as deals with other countries, RCEP will have less of an impact on tariffs. But it is still a big win for the association, which has bucked the trend of global protectionism and spearheaded the drive to conclude the agreement.

“ASEAN has played a critical role in this journey,” Singaporean Trade and Industry Minister Chan Chun Sing told reporters on Sunday. “Its leadership as a trusted and neutral group has enabled our partners to come together in an unprecedented way and cooperate under the umbrella of RCEP.”

There are still hurdles ahead

After the signing, individual members still need to ratify RCEP. The deal will only take effect after at least six ASEAN states and three non-ASEAN ones complete this process. It could take some time, even in countries that move fast.

Singapore’s Chan said he expects his country will ratify it in the next few months. Indonesia’s process will start with the translation of the lengthy document. “Hopefully in the next two months, we can finish the translation … to be submitted to the president and the [national assembly] for bodog casino ratification,” Imam Pambagyo, general director of international trade negotiation at Indonesia’s trade ministry, told the media on Sunday.

Some countries might take years to get the job done, according to Nick Marro, lead analyst for global trade at the Economist Intelligence Unit.

“Ratification will likely be tricky in national parliaments, owing to both anti-trade and anti-China sentiment,” he said in a note issued on Monday. “That’ll be one of the unintended consequences of China’s more aggressive foreign policy tilt from over the past year. It might range from at least several months to several years until the deal becomes effective.”

In other words, RCEP members may not reap the benefits as quickly as they expected.

Another challenge will be bringing India back into the fold. Asia’s third largest economy was originally involved in the talks but pulled out last year, as it was wary of hurting its local businesses and farmers.

Additional reporting by CK Tan in Shanghai, Ismi Damayanti in Jakarta and Masayuki Yuda in Bangkok.

Kentaro Iwamoto is a staff writer as Nikkei Asia. 

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The fifteen countries signing the RCEP are the ten ASEAN countries — Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam — and five others (Australia, China, Japan, New Zealand and the Republic of Korea). India had participated in negotiations but withdrew in late 2019. According to a CNN article, “The Regional Comprehensive Economic Partnership spans 15 countries and 2.2 billion people, or nearly 30% of the world’s population, according to a joint statement released by the nations on Sunday, when the deal was signed. Their combined GDP totals roughly $26 trillion and they account for nearly 28% of global trade based on 2019 data.” CNN Business, November 16, 2020, China signs huge Asia Pacific trade deal with 14 countries, https://www.cnn.com/2020/11/16/economy/rcep-trade-agreement-intl-hnk/index.html.

The Joint Statement released on the 15th is copied below.

Joint Leaders’ Statement on The Regional Comprehensive Economic Partnership (RCEP)

“We, the Heads of State/Government of the Member States of the Association of Southeast Asian Nations (ASEAN) – Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Viet Nam – Australia, China, Japan, Korea and New Zealand, met virtually on 15 November 2020, on the occasion of the 4th RCEP Summit.

We were pleased to witness the signing of the RCEP Agreement, which comes at a time when the world is confronted with the unprecedented challenge brought about by the Coronavirus Disease 2019 (COVID-19) global pandemic. In light of the adverse impact of the pandemic on our economies, and our people’s livelihood and well-being, the signing of the RCEP Agreement demonstrates our strong commitment to supporting economic recovery, inclusive development, job creation and strengthening regional supply chains as well as our support for an open, inclusive, rules-based trade and investment arrangement. We acknowledge that the RCEP Agreement is critical for our region’s response to the COVID-19 pandemic and will play an important role in building the region’s resilience through inclusive and sustainable post-pandemic economic recovery process.”

https://asean.org/joint-leaders-statement-regional-comprehensive-economic-partnership-rcep-2/

The agreement has twenty chapters some of which have annexes:

1. Initial Provisions and General Definitions
2. Trade in Goods
3. Rules of Origin
4. Customs Procedures and Trade Facilitation
5. Sanitary and Phytosanitary Measures
6. Standards, Technical Regulations, and Conformity Assessment Procedures
7. Trade Remedies
8. Trade in Services
9. Temporary Movement of Natural Persons
10. Investment
11. Intellectual Property
12. Electronic Commerce
13. Competition
14. Small and Medium Enterprises
15. Economic and Technical Cooperation
16. Government Procurement
17. General Provisions and Exceptions
18. Institutional Provisions
19. Dispute Settlement
20. Final Provisions

The full RCEP agreement and country schedules of tariff commitments can be found in English at the webpage for RCEP, https://rcepsec.org/legal-text/ as well as on various individual signatory web pages. See, e.g., the Australian Government, Department of Foreign Affairs and Trade, https://www.dfat.gov.au/trade/agreements/not-yet-in-force/rcep/rcep-text-and-associated-documents.

A summary of the agreement from the ASEAN webpage is embedded below. https://asean.org/storage/2020/11/Summary-of-the-RCEP-Agreement.pdf.

From the chapter titles, it is clear that the Agreement does not deal with issues such as labor or environment. While there is a chapter on trade remedies, a review shows no expanded rules on industrial subsidies – a matter of concern for many countries dealing with China. Similarly, under the competition chapter, the only reference (and it is indirect) to state-owned or state-invested enterprises is contained in Article 13.3.5 (“Article 13.3: Appropriate Measures against Anti-Competitive Activities”). “Each Party shall apply its competition laws and regulations to all entities engaged in commercial activities, regardless of their ownership. Any exclusion or exemption from the application of each Party’s competition laws and regulations, shall be transparent and based on grounds of public policy or public interest.” (Emphasis added).

RCEP Chapter 7, Trade Remedies

While subsequent posts will look at other aspects of the RCEP Agreement, this post looks at Chapter 7, Trade Remedies. For convenience, the chapter is embedded below.

Safeguard actions

Section A of Chapter 7 deals with RCEP safeguard measures. The RCEP safeguard measure is intended to be available for a transitional period that extends to a period that is eight years after the tariff elimination or reduction on a specific good is scheduled to occur. Relief can be in the form either of stopping tariff reductions or snapping the tariff back to the MFN rate at the lower of the rates applicable at the date of entry into force of the Agreement for the country in question or the MFN rate on the date when the transitional RCEP safeguard measure is put in place. There is a three year limit on relief, with a one year extension in certain circumstances. If relief is for more than a year, the relief provided is to be reduced “at regular intervals”. Relief is not available against imports from a RCEP party whose imports are less than 3% of total imports from the RCEP parties or if the RCEP party is a Least Developed Country. RCEP has three members who are Least Developed Countries (LDCs) according to the UN’s 2020 list – Cambodia, Laos and Myanmar. Compensation is required and if not agreed to, then the party subject to the RCEP safeguard “may suspend the application of substantially equivalent concessions” on goods from the party applying the safeguard. No compensation is required during the first three years of relief if there has been an absolute increase in imports. No compensation will be requested from an LDC.

RCEP countries preserve their rights under the WTO to pursue global safeguard measures. RCEP parties bodog sportsbook review are not to apply both a RCEP safeguard and a global safeguard to the same good at the same time.

Antidumping and Countervailing Duties

Section B of Chapter 7 deals with antidumping and countervailing duties. While the Section starts by noting that parties “retain their rights and obligations under Article VI of GATT 1994, the AD Agreement, and the SCM Agreement,” the section adds clarity to notice and consultation requirements, timing of notice and information required for verification, maintaining a non-confidential file available to all parties and other matters. The biggest addition to parties rights and obligations is the acceptance of a “Prohibition on Zeroing” in dumping investigations and reviews. Article 7.13.

“When margins of dumping are established, assessed, or reviewed under
Article 2, paragraphs 3 and 5 of Article 9, and Article 11 of the AD Agreement, all individual margins, whether positive or negative, shall be counted for weighted average-to-weighted average and transaction-to- transaction comparison. Nothing in this Article shall prejudice or affect a Party’s rights and obligations under the second sentence of subparagraph 4.2 of Article 2 of the AD Agreement in relation to weighted average-to-transaction comparison.”

Considering the centrality of the WTO dispute settlement decisions on “zeroing” to the U.S. position on overreach by the Appellate Body, the actions of the RCEP parties to add the obligation contained in RCEP Art. 7.13 to their approach to antidumping investigations will almost certainly complicate the ability of the WTO to move past the impasse on the Appellate Body.

Conclusion

The RCEP Agreement is an important FTA in the huge number of such agreements entered by countries around the world. There will certainly be advantages for the RCEP countries from the regional trade liberalization and the common rules of origin adopted.

Pretty clearly, the RCEP has not dealt with some of the fundamental challenges to the global trading system from the rise of economic systems that are not premised on market-economy principles. While such issues can be addressed in the WTO going forward, the ability of China to get a large number of trading partners to open their markets without the addressing of the underlying core distortions from the state directed economic system that China employs suggests that the road to meaningful reform has gotten longer with the RCEP Agreement.

Nor have the RCEP countries chosen to include within the RCEP action on issues like the environment which are of growing importance to the ability to have sustainable development. Again while such issues can be addressed in the WTO, they are also being addressed in bilateral and plurilateral agreements by other countries and including some of the RCEP countries. Thus, RCEP is a lost opportunity for leadership by China on issues of great importance to its citizens and those of all RCEP parties.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

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