Data Protection Law in Investment Arbitration: Applicable or Not?

Abstract

Two recent cases, Tennant Energy v Canada and Elliott Associates v Korea, demonstrate an emerging yet unresolved applicable law issue in investment arbitration: whether a local personal data protection law should be applied in the absence of parties’ choice. This articlexplores this issue from three different dimensions: (i) the relevant law applicable to an arbitration (eg treaties and arbitration rules); (ii) the connecting factors between an arbitration and local data protection law; and (iii) the immunities or privileges, if any, under public international law. It proposes that the connecting factors between an arbitration and a local personal data protection law should be considered with the privileges and immunities under public international law. This proposed approach can provide predictability and certainty to the applicable law. Importantly, it can also protect the integrity and impartiality of an investment arbitration from the impacts of local laws.