This paper explores potential expropriation claims against data sharing requirements. It finds that in formulating a viable claim of expropriation against mandatory data disclosures, the nature of the disclosure requirement matters. If the disclosure is likely to substantially affect the investor’s ability to benefit from the investment, it is likely to be considered an expropriation. As most data-driven businesses derive an economic benefit from their data through revenue and profit, it is likely an expropriation will be found where follow-on disclosure of data collected through a mandatory data disclosure regime to third parties substantially disrupts the investor from deriving revenue and profit from that data.
This paper was published as a commentary in the New York University Journal of International Law & Politics, Vol 54, Number 1 (Fall 2021), p. 249. The paper originated in the Global Data Law course.
