This article delves into the evolving legal landscape where data is increasingly viewed as a
crucial asset international investment arbitration. It contextualises the discussion with the
Einarsson v. Canada case [“Einarsson ”], focusing on the contentious issue of whether
seismic data, used in oil and gas exploration, can be considered a protected investment
under international investment agreements. The case underscores the tension between
intellectual property [“IP ”] rights, specifically copyrights in seismic data, and regulatory
measures enacted by states for public policy objectives. The article examines how
arbitration tribunals grapple with state actions impacting the value or use of data owned
by foreign investors, such as data localisation requirements or cybersecurity regulations. It
questions whether these measures could be seen as indirect expropriation or violations of
the fair and equitable treatment standard by restricting investors’ control over their data.
Further, the article explores the notion of data as an economic good, its valuation, and
the legal frameworks governing its ownership and trade. It debates the argument for
recognising data as an investment, highlighting the potential implications for the
protections offered by international investment agreements to data assets. By analysing the
Einarsson case, the article provides insights into the complex interplay between protecting data-driven investments and allowing states the regulatory discretion to achieve public
policy goals. It highlights the challenges and implications for the regulatory discretion of
states, the protection of foreign investments, and the broader relationship between
international investment law and data regulation.
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