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India recently decided to ban a slew of applications (“apps”), mostly Chinese, accessed on mobile phones and other internet-based devices citing privacy and security concerns arising from the surreptitious mining and profiling of user data that is collected by these apps. It found these activities to be prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order. China responded that it suspected India’s decision to ban these apps to have violated the obligations that India had committed to under the framework of he World Trade Organization (WTO). Through this paper, we explore certain claims that China could potentially bring against India’s measure under the relevant WTO agreements, especially the General Agreement on Trade in Services (GATS) and various ensuing issues that WTO adjudicating bodies may be confronted with in examining these claims. Assuming that India’s measure is inconsistent with India’s obligations and commitments under the GATS, we further analyse whether India can justify this measure under the GATS national security exception (Article XIVbis) considering that the measure was taken by India at a time of escalating tensions between Indian and Chinese military troops at the border between these two countries. Finally, we seek to answer a counterfactual question: if the immediate background of military conflicts and heightened tensions was missing, how credible is the claim that the activities of certain Chinese apps are prejudicial to the security of the country where the data subjects of these apps are located? We feel that this analysis could be important in the light of other countries imposing a similar ban on apps or devices that are owned by Chinese operators.


International Trade Law | Law | Law and Economics