Brazil: Data Protection In International Arbitration: A Brazilian Perspective

Cyber security is a hot topic in international arbitration. The enactment of the EU General Data Protection Regulation (GPDR) and the Brazilian General Law on Personal Data (LGPD) has brought attention to the relevance of data protection and its associated risks. This article addresses the recent actions taken by certain arbitral institutions and international associations – worldwide and in Brazil – to bring awareness of data protection and avoid cyber attacks that could put at risk the confidentiality of arbitration, one of its most desired characteristics.


Confidentiality is one of the most desired characteristics of arbitration. In a 2018 survey carried out by London’s Queen Mary University and White & Case, 96 percent of respondents confirmed that confidentiality is a key element when choosing arbitration over other dispute resolution methods. Besides, most participants stated that confidentiality should be an opt-out – as opposed to an opt-in – feature for arbitration.

Indeed, parties may discuss and produce in arbitration valuable data, such as distribution networks, business models, commercial know-how, technical formulae, trade secrets or other proprietary information. The disclosure of such information to third parties may have severe adverse consequence. According to the ‘International Arbitration Survey: Cybersecurity in International Arbitration’, 11 percent of respondents declared they had already suffered cyber attacks in arbitration. A very famous cyber attack occurred in 2015 when the website of the Permanent Court of Arbitration was hacked to obtain information regarding a maritime boundary dispute between China and the Philippines.

According to the GDPR, which came into force in May 2018, companies or individuals that breach data protection rights may receive fines of up to €20m. The GDPR applies to all data controllers and data processors who are either located in the EU or process the data of individuals in the EU. The data transferred in international arbitration may therefore be subject to the GDPR and participants may also be subject to severe penalties in case of a breach.

In view of the above scenario, the arbitral community is aware of the relevance of data protection in international arbitration and has been taking measures to address concerns.

Data protection in international arbitration

Participants in arbitration exchange a lot of information digitally. Submissions, communications and documents are frequently transmitted in electronic format. Several participants are also involved in arbitral proceedings: arbitrators, counsel, arbitral institutions, technical assistants, hearing service providers, supporting staff and experts, among others. These stakeholders often travel extensively and work from various places, including hotels, airport lounges or private offices. One weak link or action could put all the sensitive information at risk.

Prominent international institutions have issued guidelines to promote awareness of cyber security measures. For instance, the International Chamber of Commerce (ICC) issued, in 2015, guidelines to help companies of all sizes to manage their approach to cyber security (the so-called ‘ICC Cyber Security Guide for Business’). These guidelines provide a checklist of steps that companies should take towards information security excellence.

In October 2018, the International Bar Association (IBA) issued the so-called ‘Cybersecurity Guidelines‘. Such guidelines provide practical guidance on technological measures to protect law firms from cyber attacks and recommendations based on the size of the firm and the type of issue to be protected.

In 2017, the International Institute for Conflict Prevention & Resolution (CPR), the International Council for Commercial Arbitration (ICCA) and the New York City Bar Association launched a working group to specifically discuss cyber security in international arbitration. In 2018, this working group released a draft ‘Cybersecurity Protocol for International Arbitration’. This protocol was subject to comments from the arbitration community until September 2018 and its final form should be available later this year.

The protocol recognises that everyone is a potential weak link and recommends that all arbitration agreements include provisions for the protection of confidential information during the arbitral proceedings. It also suggests that arbitral institutions offer adequate cyber security protections for sensitive information.

In practical terms, the protocol presents very usable and simple measures to promote cyber security and confidentiality in arbitration, such as: (i) the use of end-to-end encryption for email and password document protection; (ii) the use of secure file transfer to share documents; (iii) the use of privacy screens when viewing confidential documents in public; (iv) being cautious when using the internet in public environments; (v) implementing policies to reduce the data storage period used in an arbitration; (vi) making routine secure and redundant data back-ups; (vii) when defining a password, avoiding common dictionary words, past passwords, repetitive or sequential characters; (viii) the use of firewalls, antivirus and antispyware software, operating system updates and other software patches, (xi) downloading programs and digital content only from legitimate sources; (x) not opening attachments from unknown email senders; and (xi) keeping mobile devices close and making use of available protective measures in case of loss or theft.

In line with the above, international arbitral institutions have also taken steps to promote cyber security. The revised arbitration rules of the Hong Kong International Arbitration Centre (HKIAC), which came into effect in November 2018, determine that any written communication will be deemed to be received by a party, arbitrator and the HKIAC if it is uploaded to any secured online repository. Parties are free to use their own secured case platform, or a secured system provided by the HKIAC. Moreover, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has just released a report informing that, as of September 2019, all SCC arbitrations will have access to a secured case platform whereby the SCC, the parties and the arbitrators can safely share case-related documents.

Data protection in Brazil

The Brazilian arbitration community also values confidentiality. In a 2018 survey conducted on behalf of the Brazilian Arbitration Committee (CBAr), 28 percent of respondents specifically described confidentiality as one of the main features of arbitration.

While confidentiality is not automatically applied to arbitral proceedings according to the Brazilian Arbitration Act, virtually all Brazilian arbitral institutions determined that proceedings will be confidential unless otherwise determined by the parties. Following such an approach, the Brazilian Civil Procedure Code states that court actions related to arbitration – such as annulment lawsuits and court injunctions prior to the constitution of the arbitral tribunal – are processed under seal.

Brazil has recently published the Brazilian General Law on Personal Data (LGPD). This law will become effective in August 2020 and has very similar principles and rationale to the GPDR. It applies to legal entities and individuals that handle and treat data produced or to be delivered in the Brazilian territory. Consent is a central element of the LGPD, being one of the conditions for processing personal data. The LGPD allows the international transfer of personal data provided that: (i) it is transferred to countries or international organisations that provide an adequate level of protection of personal data; (ii) the controller of the data demonstrates that the transfer will not violate the individual’s personal data rights under the LGPD; (iii) it is necessary for international legal cooperation; (iv) it is necessary for the execution of public policy; (v) the individual that holds the personal information has provided specific consent to the international transfer; or (vi) it is necessary for the controller to protect its rights. Violations of these provisions are subject to fines of up to 50m reais for each infraction and the blockage or elimination of the personal data to which the infraction refers.

In view of the LGPD, the Brazilian arbitration community is also aware that it needs to increase and promote awareness of data protection in arbitration. Several lectures and sessions have been promoted recently on this subject. The Brazilian Center of Mediation and Arbitration (CBMA), one of most important Brazilian arbitral institutions, has launched a working group to study potential measures to ensure data protection in arbitrations.


All participants in international arbitration share the responsibility to safeguard confidential information and secure it from cyber attacks. The first step is to promote awareness of the relevance of data protection and the need to take measures to avoid cyber attacks and increase data safety. As cyber attacks will constantly evolve, every player in arbitration should make efforts to be educated about cyber security best practices and associated risks. The arbitration community must closely watch the measures taken by arbitral institutions, arbitrators and law firms on this issue and how they may improve services and protect data.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions