The enactment of China's Data Security Law and Personal Information Protection Law has created an issue for Chinese enterprises.It is subject to evidence production orders in overseas arbitral proceedings.The exis...The enactment of China's Data Security Law and Personal Information Protection Law has created an issue for Chinese enterprises.It is subject to evidence production orders in overseas arbitral proceedings.The existing framework governing cross-border data transfers is procedurally ill-suited to arbitration timelines.Also,it does not address arbitration-specific scenarios.This paper employs doctrinal legal analysis to examine the interpretive scope of Article 36 of the Data Security Law.It draws on comparative references to the European Union and the United States as comparative evidence of the limits.The conflict arises because Article 36 prohibits providing data to foreign judicial or law enforcement authorities.It has not been authoritatively interpreted to exclude or include international commercial arbitral tribunals.This leaves Chinese enterprises exposed to potential administrative penalties if they produce evidence and to adverse consequences if they do not.The solution is a narrow judicial interpretation of Article 36 to exclude privately constituted commercial arbitral tribunals from its scope,accompanied by a targeted tiered classification mechanism for arbitration-specific data export applications and,as a supplementary technical measure,domestically hosted Virtual Data Rooms(VDR)for lower-sensitivity evidence production.These solutions are legally tractable and directly serve the state's interest in international commercial dispute resolution.展开更多
文摘The enactment of China's Data Security Law and Personal Information Protection Law has created an issue for Chinese enterprises.It is subject to evidence production orders in overseas arbitral proceedings.The existing framework governing cross-border data transfers is procedurally ill-suited to arbitration timelines.Also,it does not address arbitration-specific scenarios.This paper employs doctrinal legal analysis to examine the interpretive scope of Article 36 of the Data Security Law.It draws on comparative references to the European Union and the United States as comparative evidence of the limits.The conflict arises because Article 36 prohibits providing data to foreign judicial or law enforcement authorities.It has not been authoritatively interpreted to exclude or include international commercial arbitral tribunals.This leaves Chinese enterprises exposed to potential administrative penalties if they produce evidence and to adverse consequences if they do not.The solution is a narrow judicial interpretation of Article 36 to exclude privately constituted commercial arbitral tribunals from its scope,accompanied by a targeted tiered classification mechanism for arbitration-specific data export applications and,as a supplementary technical measure,domestically hosted Virtual Data Rooms(VDR)for lower-sensitivity evidence production.These solutions are legally tractable and directly serve the state's interest in international commercial dispute resolution.
