Cut off cross-border data flow and international investment law. : A legal analysis of a restriction with an effect equivalent of a ban on cross-border data flow and the fair and equitable treatment standard found in bilateral investment treaties.

Abstract: In the world we live in today, the international trade and economy is becoming more and more dependent on data. Data that can be transferred across borders and during the last couple of years there is an observable trend that the cross-border data flows is increasing. The increase of the cross-border data flows is a result of the vast boom in the global digitalization.  Businesses and enterprises can use the data accessible in multiple kinds of ways, follow and keep control of production chains, follow the demand of consumers, and make alterations to the products following the requests of the consumers. This is improving the efficiency and productivity of the businesses. The free flow of data across borders does not only have positive effect for the businesses, but also from a larger perspective, it also contributes to the welfare of countries, and provide new possibilities and opportunities. Despite the fact that the free flow of data has its great effects on both businesses and the welfare of states, states are imposing restrictions on cross-border data flows. The restrictions in place are of deferent kinds, some makes it mandatory to store or process data, while other restrictions are harsher and could provide a ban or cut off on cross-border data flow.  In the legal system of international investment law, the fair and equitable treatment standard is a standard found in treaties, bilateral and multilateral. The standard is protecting the forging investors.  If a state is enforcing a restriction with an effect equivalent to a ban on cross-border data flow, what is the relation of that restriction to the fair and equitable treatment standard?