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Abstract

Currently, the European data protection regime has become one of the most influential legal frameworks regulating data privacy protection and cross-border personal data transfers. Despite a burgeoning body of scholarship on EU data protection law, the questions of why and how the EU adopted this regulatory approach remain understudied. Contrary to conventional wisdom, European data protection regulation is neither preordained by Europe’s historical or cultural legacies, nor simply a result imposed by powerful EU member states out of national economic interests. Instead, this work argues that this legal regime is the result of contentious lawmaking processes aimed at addressing regulatory challenges and altering existing institutional rules. Drawing on the analytical lens of forum-shifting from international relations scholarship, it provides a novel explanation for the emergence and evolution of European data protection law, revealing salient power dynamics shaping the legal and policy outcomes. At the core, this article explores how a powerful coalition of privacy-focused institutional actors in Europe leveraged asymmetrical power resources to impose their policy preferences at the Union level, and deployed forum-shifting as a lawmaking strategy to create, reform, and develop EU data privacy standards, thereby profoundly shaping supranational rulemaking. Further, this article also examines the normative and policy implications of these forum-shifting processes for the transatlantic legal frameworks governing personal data transfers from Europe to the U.S. By analyzing the pivotal role of these pan-European rulemaking efforts in shaping EU-U.S. commercial data transfer mechanisms, it delves into the power dynamics underpinning the establishment and iterative development of the transatlantic data governance regime.

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