RWS Group

This arbitration option is available to an individual to determine, for residual claims, whether RWS has violated its obligations under the Principles as to that individual, and whether any such violation remains fully or partially unremedied. This option is available only for these purposes. This option is not available, for example, with respect to the exceptions to the Principles (Overview, para. 5) or with respect to an allegation about the adequacy of the DPF.

Under this arbitration option, the “Data Privacy Framework Panel” (the arbitration panel consisting of one or three arbitrators, as agreed by the parties) has the authority to impose individual-specific, non-monetary equitable relief (such as access, correction, deletion, or return of the individual’s data in question) necessary to remedy the violation of the Principles only with respect to the individual. These are the only powers of the Data Privacy Framework Panel with respect to remedies. In considering remedies, the Data Privacy Framework Panel is required to consider other remedies that already have been imposed by other mechanisms under the DPF. No damages, costs, fees, or other remedies are available. Each party bears its own attorney’s fees.

An individual who decides to invoke this arbitration option must take the following steps prior to initiating an arbitration claim: (1) raise the claimed violation directly with RWS and afford RWS an opportunity to resolve the issue within the timeframe set forth in section (d)(i) of the Supplemental Principle on Dispute Resolution and Enforcement; (2) make use of the independent recourse mechanism under the Principles, at no cost to the individual; and (3) raise the issue through the individual’s DPA to the Department and afford the Department an opportunity to use best efforts to resolve the issue within the timeframes set forth in the Letter from the Department’s International Trade Administration, at no cost to the individual.

This arbitration option may not be invoked if the individual’s same claimed violation of the Principles (1) has previously been subject to binding arbitration; (2) was the subject of a final judgment entered in a court action to which the individual was a party; or (3) was previously settled by the parties. In addition, this option may not be invoked if a DPA (1) has authority under the Supplemental Principle on the Role of the Data Protection Authorities or the Supplemental Principle on Human Resources Data; or (2) has the authority to resolve the claimed violation directly with the organization. A DPA’s authority to resolve the same claim against an EU, UK or Swiss data controller does not alone preclude invocation of this arbitration option against a different legal entity not bound by the DPA authority.

An individual’s decision to invoke this binding arbitration option is entirely voluntary. Arbitral decisions will be binding on all parties to the arbitration. Once invoked, the individual forgoes the option to seek relief for the same claimed violation in another forum, except that if non-monetary equitable relief does not fully remedy the claimed violation, the individual’s invocation of arbitration will not preclude a claim for damages that is otherwise available in the courts.

Individuals and RWS will be able to seek judicial review and enforcement of the arbitral decisions pursuant to U.S. law under the Federal Arbitration Act.[see note 1] Any such cases must be brought in the federal district court whose territorial coverage includes the primary place of business of RWS. This arbitration option is intended to resolve individual disputes, and arbitral decisions are not intended to function as persuasive or binding precedent in matters involving other parties, including in future arbitrations or in EU, UK, Swiss or U.S. courts, or FTC proceedings. 

[Note 1] Chapter 2 of the Federal Arbitration Act (“FAA”) provides that “[a]n arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in [section 2 of the FAA], falls under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21 U.S.T. 2519, T.I.A.S. No. 6997 (“New York Convention”)].” 9 U.S.C. § 202. The FAA further provides that “[a]n agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the [New York] Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.” Id. Under Chapter 2, “any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said [New York] Convention.” Id. § 207. Chapter 2 further provides that “[t]he district courts of the United States . . . shall have original jurisdiction over . . . an action or proceeding [under the New York Convention], regardless of the amount in controversy.” Id. § 203. 

Chapter 2 also provides that “Chapter 1 applies to actions and proceedings brought under this chapter to the extent that chapter is not in conflict with this chapter or the [New York] Convention as ratified by the United States.” Id. § 208. Chapter 1, in turn, provides that “[a] written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. § 2. Chapter 1 further provides that “any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of [the FAA].” Id. § 9.

The parties will select arbitrators for the Data Privacy Framework Panel from the list of arbitrators discussed below. 

Consistent with applicable law, the Department and the Commission will develop a list of at least 10 arbitrators, chosen on the basis of independence, integrity, and expertise. The following shall apply in connection with this process:

Arbitrators:

1. will remain on the list for a period of 3 years, absent exceptional circumstances or removal for cause, renewable by the Department, with prior notification to the Commission, for additional 3-year terms; 
2. shall not be subject to any instructions from, or be affiliated with, either party, or any participating organization, or the U.S., EU, any EU Member State, UK, Swiss or any other governmental authority, public authority, or enforcement authority; and 
3. must be admitted to practice law in the United States and be experts in U.S. privacy law, with expertise in EU data protection law.

The Department and the Commission have agreed, consistent with applicable law, to the adoption of arbitration rules that govern proceedings before the Data Privacy Framework Panel.[see note 2] In the event the rules governing the proceedings need to be changed, the Department and the Commission will agree to amend those rules or adopt a different set of existing, well-established U.S. arbitral procedures, as appropriate, subject to each of the following considerations: 

1. An individual may initiate binding arbitration, subject to the pre-arbitration requirements provision above, by delivering a “Notice” to the organization. The Notice shall contain a summary of steps taken under Paragraph C to resolve the claim, a description of the alleged violation, and, at the choice of the individual, any supporting documents and materials and/or a discussion of law relating to the alleged claim. 
2. Procedures will be developed to ensure that an individual’s same claimed violation does not receive duplicative remedies or procedures. 
3. FTC action may proceed in parallel with arbitration. 
4. No representative of the U.S., EU, any EU Member State, UK, Swiss or any other governmental authority, public authority, or enforcement authority may participate in these arbitrations, provided, that at the request of an individual, DPAs may provide assistance in the preparation only of the Notice but DPAs may not have access to discovery or any other materials related to these arbitrations. 
5. The location of the arbitration will be the United States, and the individual may choose video or telephone participation, which will be provided at no cost to the individual. In-person participation will not be required.  
6. The language of the arbitration will be English unless otherwise agreed by the parties. Upon a reasoned request, and taking into account whether the individual is represented by an attorney, interpretation at the arbitral hearing, as well as translation of arbitral materials will be provided at no cost to the individual, unless the Data Privacy Framework Panel finds that, under the circumstances of the specific arbitration, this would lead to unjustified or disproportionate costs. 
7. Materials submitted to arbitrators will be treated confidentially and will only be used in connection with the arbitration. 
8. Individual-specific discovery may be permitted if necessary, and such discovery will be treated confidentially by the parties and will only be used in connection with the arbitration.
9. Arbitrations should be completed within 90 days of the delivery of the Notice to RWS, unless otherwise agreed to by the parties. 

[Note 2] The International Centre for Dispute Resolution (“ICDR”), the international division of the American Arbitration Association (“AAA”) (collectively “ICDR-AAA”), was selected by the Department to administer arbitrations pursuant to and manage the arbitral fund identified in Annex I of the Principles. On September 15, 2017, the Department and the Commission agreed to the adoption of a set of arbitration rules to govern binding arbitration proceedings described in Annex I of the Principles, as well as a code of conduct for arbitrators that is consistent with generally accepted ethical standards for commercial arbitrators and Annex I of the Principles. The Department and the Commission agreed to adapt the arbitration rules and code of conduct to reflect the updates under the EU-U.S. DPF, and the Department will work with the ICDR-AAA to make those updates.

Arbitrators should take reasonable steps to minimize the costs or fees of the arbitrations. 

The Department will, consistent with applicable law, facilitate the maintenance of a fund, to which RWS will be required to contribute, based in part on the size of the organization, which will cover the arbitral cost, including arbitrator fees, up to maximum amounts (“caps”). The fund will be managed by a third party, which will report regularly to the Department on the operations of the fund. The Department will work with the third party to periodically review the operation of the fund, including the need to adjust the amount of the contributions or of the caps on the arbitral cost, and consider, among other things, the number of arbitrations and the costs and timing of the arbitrations, with the understanding that there will be no excessive financial burden imposed on RWS. The Department will notify the Commission of the outcome of such reviews with the third party and will provide the Commission with prior notification of any adjustments of the amount of the contributions. Attorney’s fees are not covered by this provision or any fund under this provision.