ABSTRACT
Arbitration can offer a lot to the parties involved in data protection disputes. Data subjects, controllers and processors are likely to benefit from its flexibility, speediness, direct enforceability of the awards, lack of traditional appeals, and confidentiality. Despite its usefulness, arbitration cannot proceed if the courts find the subject matter to be non-arbitrable, regardless of the will of the parties. This article argues that there is little reason to believe that such will of the parties – as enshrined in a valid arbitration agreement – should be simply cast away. The EU law has long accepted that disputes in which a violation of a fundamental right appears as an incidental question are arbitrable. There is no reason for the GDPR to override this significant – and logical – principle, especially as it contains no explicit provisions doing so. The fact that data protection disputes are arbitrable, however, does not give the drafters of arbitration agreements the right to design a system in which the parties are deprived of their rights. This article argues that there are sufficient safeguards in place to avoid such outcomes. The courts can, and likely will, exercise the highest possible degree of scrutiny when assessing the validity of the arbitration agreement and the award’s compatibility with the public policy. Taken together, this leads to the conclusion that data protection disputes are capable of being – and very often should be – settled by arbitration.
Novovic, Milos, Arbitrability of GDPR Disputes.
First posted 2022-06-28 17:30:04
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