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ICCA and IBA establish task force on data protection  

ICCA and the IBA have joined forces to produce a guide to one of the most challenging current issues in international arbitration: data protection.   

While data breaches have been widely covered in the press for many years, the introduction of the EU’s General Data Protection Regulation (GDPR) in May 2018 brought unprecedented attention to the importance of data protection and the risks imposed by failure to comply.  By tightening the rules and imposing fines of up to 4% of annual global turnover or €20 million (whichever is greater), the GDPR has captured the interest of both the users of arbitration services and the arbitration community alike.

To help participants in international arbitration proceedings understand the data protection obligations that may apply to them, ICCA and the IBA have joined forces to produce a practical guide that identifies the ways in which data protection may need to be taken into account during the course of an arbitration.  As it is not possible to address all the data protection laws that might apply to an arbitration, the Guide will use the GDPR as an example of the types of rules that may be imposed. 

Given the complexity of the arbitral process and the fact that the GDPR’s application to an arbitration is highly fact specific and may be affected by national implementing legislation, the Guide will not provide a universal solution. Instead, it will offer an overview of the regulatory framework, followed by an explanation of how data protection obligations may impact both the individuals involved in arbitration and the arbitral process itself.  The Guide will come with a set of Annexes including useful information, checklists, and sources to be used during arbitral proceedings to address potential data protection issues. 

The ICCA-IBA Joint Task Force on Data Protection in International Arbitration Proceedings is chaired by Kathleen Paisley (Ambos Law, Brussels, New York and London) on behalf of ICCA and Melanie van Leeuwen (Derains & Gharavi, Paris) on behalf of the IBA. Members include Lawrence Akka QC (20 Essex Street), Rosa Barcelo (Squire Patton Boggs), Niuscha Bassiri (Hanotiau & van den Berg), Lisa Bingham (ICCA), Markus Burianski (White & Case), Hugh Carlson (Three Crowns), Daniel Cooper (Covington & Burling LLP), Javier Fernandez-Samaniego (Samaniego Law), Hilary Heilbron QC (Brick Court Chambers), Robert Maddox (Debevoise & Plimpton), Charlie Morgan (Herbert Smith Freehills LLP), Philippe Pinsolle (Quinn Emanuel Urquhart & Sullivan LLP) and Jacques de Werra (University of Geneva). 

 In March 2019 the Task Force will publish a Draft Guide for public comment. A number of arbitral institutions have agreed to provide input during the drafting process, including the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the Arbitration Institute of the Stockholm Chamber of Commerce, the International Centre for Settlement of Investment Disputes (ICSID), the ICC Court of International Arbitration, the Institute for Conflict Prevention and Resolution (CPR), the Hong Kong International Arbitration Centre, the London Court of International Arbitration, the Permanent Court of Arbitration, the Swiss Chambers’ Arbitration Institution, and the World Intellectual Property Organization Arbitration and Mediation Centre. 

For updates on the Task Force’s work, please keep an eye on the ICCA Projects page for this Task Force.