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Ioana Bratu & Arijit Sanyal

DATA AS PROTECTED INVESTMENT IN THE BACKGROUND OF EINARSSON V.CANADA

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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