Category: Article

Tennant Energy vs. Canada: Diluting the Impact of GDPR in International Treaty Arbitration

Bhavit Baxi

The Permanent Court of Arbitration ‘PCA’ in Tennant Energy vs. Canada[1] ruled that EU General Data Protection Regulations (‘GDPR’) will not come within the material scope in investor-state arbitrations under Chapter 11 of North American Trade Agreement ‘NAFTA’, a treaty to which neither the European Union nor its Member States are the parties.

Factual Background

In June 2017, the Tennant Energy LLC instituted the arbitration proceedings against Canada which were in front of Permanent Court of Arbitration. Thereby Tennant Energy under Chapter 11 of NAFTA claimed the damages from Canada amounting to $ 116 Million relating to its investment in a wind project.

Since the beginning of the proceedings the preliminary issues of Data Protection were the prime focus of the discussions.[2] It was Argued by the Claimant that EU General Data Protection Regulation 2016/679 should be taken into account and the procedures developed to comply with it, since one of the tribunal members (Arbitrator) is based in the UK.[3] Canada, on the other hand, argued that the GDPR does not generally govern the arbitration proceedings because, among other things, the claim was made under a treaty to which neither the EU nor its Member States are a party. Therefore, the arbitration is outside of the material scope of the GDPR.[4]

Procedural order

The Arbitral Tribunal on 24 June 2019 informed both the parties via email very briefly in two paragraphs stating “Arbitration under NAFTA Chapter 11, a treaty to which neither the European Union nor its Member States are party, does not, presumptively, come within the material scope of the GDPR.”

Further Tribunal also clarified that Procedural Order would not make any reference to GDPR, however this would be ‘without prejudice to the importance of ensuring a high level of data protection’.[5]

Applicability of GDPR

The fundamental objective of GDPR is to protect natural persons with regard to the processing of their personal data. It regulates and safeguards the fundamental rights and freedom of natural persons and in particular the right to have their personal data protected.

On plain reading of Article 3 of General Data Protection Regulation 2016/679 it could be concluded that the regulation is applicable to Arbitral Tribunals seated in EU and also tribunals outside EU concerning EU data subjects.

In Tennant Energy vs. Canada it was argued[6] by Canada that since the Permanent Court of Arbitration  seats in the Netherlands, this grants certain immunities to  PCA and it should exclude PCA from the applicability of GDPR.

Article 44, Chapter V of GDPR, expressly states that it covers the transfer of data to international organizations or third countries in order to ensure that the level of protection of natural persons is guaranteed.  Moreover, a European Commission decision of ‘adequacy’ is necessary prior to the transfer of the personal data to third countries or international organizations.

Further  the guidelines issued by European Data Protection Board[7] on the territorial scope of GDPR, which more explicitly clarifies that GDPR can extend to data processing that occurs outside of the EU: “The text of Article 3(1) does not restrict the application of the GDPR to the processing of personal data of individuals who are in the Union. The EDPB, therefore, considers that any personal data processing in the context of the activities of an establishment of a controller or processor in the Union would fall under the scope of the GDPR, regardless of the location or the nationality of the data subject whose personal data are being processed. This approach is supported by Recital 14 of the GDPR which states that “the protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data.”  It was further submitted by the claimant[8] that one of the London-based arbitrator has confirmed in a data privacy notice that the GDPR applies to him, as he is is both a data “processor” and a data “controller”, pursuant to how the terms are defined in the GDPR. Thus, it could be prima facie concluded that by no means Canada can escape from the applicability of GDPR.

Conclusion

GDPR serves as a strongest medium to protect sensitive and privileged, personal and commercial information, in international disputes. However, the impact of GDPR in international treaty arbitrations still remains faded and it continues to be a big topic of debate in the arbitration arena. It seems that there is a great need of case law which could settle this issue.

Lastly, ICCA and the IBA have established a Joint Task Force on Data Protection in International Arbitration Proceedings. The task force is developing the guidance to facilitate arbitration professionals with regards to data protection in arbitration proceedings, which is due to be published later in the year.

 

The author

BLS-LLB (Hons.) Student at M.K.E.S College of Law, University of Mumbai, India.

 

 

[1] PCA Case No. 2018-54: Tennant Energy, LLC (U.S.A.) v. Government of Canada.

[2] Claimants Submission on confidentiality.

[3] Investor comments on the EU General Data Privacy Regulation; – Tennant Energy, LLC (U.S.A.) v. Government of Canada.

[4] Reply to Claimant’s Submissions.

[5] See 1.

[6] Tennant Energy LLC v. Government of Canada Response to the Claimant’s Submission on the European Union General Data Protection Regulation

[7] Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) – Version for public consultation

[8] Questions And Investor’s Response To Tribunal GDPR Questions And Data Privacy Questions June 4, 2019

The end of ‘Fortress Europe’? The implications of asymmetrical UK-EU intellectual property rights after Brexit

James Taylor

  1. Brexit and the future of IP rights

For some time, businesses have been awaiting clarifications about the future of the UK-EU relationship with regard to intellectual property rights. The Intellectual Property Office (IPO) has declared it will convert all EU registered trademarks into UK marks without charge to bridge the gap that will soon exist in law between UK and EU IP rights. As regards patents, it is clear that Brexit will not have a decisive effect,  since it appears they will be governed by a separate system and an independent court.[1] The most immediate question, and currently the most uncertain, concerns the ‘exhaustion’ of IP rights. If there were a deal along similar lines to the current Withdrawal Agreement signed in November 2018, equivalence of IP rights could be expected throughout the two-year transition period that such a deal would trigger. In preparation for the event of a no-deal, however, the UK Government has laid statutory instruments[2] before Parliament that state Britain’s intention to continue honouring the principle of regional IP right exhaustion within the European Economic Area (EEA) following Brexit.

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The Withdrawal of the Notification under Article 50, or How to Stop Brexit

The Editors

The United Kingdom is due to leave the European Union on 29 of March 2019. On what terms it will do so, it is yet uncertain when less than three weeks are left before Brexit day.

On Tuesday next week, 12 March 2019, the UK Parliament will cast a vote on the new deal reached by Theresa May and the EU – ‘new’ because the parties re-open the negotiation talks after the UK Parliament had rejected the previous deal on 15 January 2019, inflicting a historic defeat to Theresa May.

On 12 March, the deal with the EU on the conditions for leaving the European Union may either be approved or rejected. If it is rejected, the conservative party has promised to the Parliament the opportunity to vote on whether to go ahead in just over three weeks’ time without any kind of negotiated deal; or whether to ask the EU to push back Brexit day in order to extend negotiations. In the latter case, it is not excluded that the UK will hold new elections, a new referendum, or even eventually halt the Brexit process. We dedicate this blog post to the European Court of Justice’s decision on whether the UK can withdraw the notification of the intention to leave given in March 2017.

The Wightman case originates from a request for a preliminary ruling made by the Court of Session –  the Scottish Supreme Civil Court – to the European Court of Justice in October 2018. The case in front of the referring court concerned a petition for judicial review brought by some Members of the Scottish and the English Parliaments before the Scottish Court on the 19th December 2017. The referring Court asked the CJEU whether the notification to withdraw from the EU sent to the European Council by the UK government on the 29th March 2017 could be unilaterally revoked by the government itself before the expire of the 2 years period envisaged in article 50(3) TEU.

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Will European initiatives to create international commercial courts be attractive enough for foreign litigants post Brexit?

Sophie Hunter

Guy Canivet, president of the High Legal Committee of the Financial Platform of Paris recently told the press that Brexit is a real eye opener, because it triggered the need to come up with an alternative to London, in order to better respond to a change in relation between the UK and parties from the continent. With the deadline of the Brexit looming ever closer and growing tensions fueled by the uncertainty of its outcome, competition between major European capitals is under way to fulfill the gap that will be left by London on March 29 2019. Paris, Frankfurt, Amsterdam and Brussels have recently announced or created specialised international commercial chambers in their jurisdictions.

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