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Recueil des cours, Collected Courses, Tome 382

Recueil des cours, Collected Courses, Tome 382

Data Protection Law and International Dispute Resolution, by D. COOPER, Partner, London Office of Covington & Burling LLP, and C. KUNER, Professor of Law at the Vrije Universiteit, Brussels.

Biographical note

Daniel P. Cooper, born 21 June 1969, United States, citizen of the United States and United Kingdom.
Partner, London Office of Covington & Burling LLP.
Harvard Law School, J.D. (cum laude) (1995). University of Oxford, M.St. (1992). Princeton University, B.A. (magna cum laude) (1991).
Solicitor of the Senior Courts of England and Wales. Member of the Bar for the Commonwealth of Massachusetts. Member of the Bar for the District of Columbia. Trustee/Director, Privacy International. European Privacy Association (EPA) Scientific Committee, Member (2015-2017). Member, British Institute of International and Comparative Law, Data Protection Research and Policy Committee. Member, European Privacy Officers Network (EPON). Member of Professional Board, Computer Law & Security Review. Member, Working Group on Regulatory Aspects of Network and Information Security, European Network and Information Security Agency (ENISA) of the European Union.
Guest Lecturer, Annual IViR Summer Course on Privacy Law and Policy (2013-2016). Law Clerk, Hon. John Ferren, District of Columbia Court of Appeals (1995). Adjunct Advisor, Pennsylvania Reapportionment Commission (1991).
Accolades: Chambers UK, Data Protection (2009-2016). Chambers Europe, Data Protection (2015). Chambers Global, Data Protection (2008-2016). Legal 500 UK, Data Protection (2012-2015). Legal 500 UK, Sport (2013-2015). Legal 500 UK, Media & Entertainment (2013). Best Lawyers in the United Kingdom, Privacy & Data Protection Law (2014). Super Lawyers, London, Computer and IT Law (2013). Who’s Who Legal, Information Technology (2013). Legal 500 EMEA, EU Regulatory, Privacy and Data Protection, Belgium (2011).

Christopher Kuner, born 16 April, 1958, United States, citizen of Germany and the United States.
Professor of law and Co-Director of the Brussels Privacy Hub, Interdisciplinary Research Group on Law Science Technology & Society (LSTS), Vrije Universiteit Brussel (VUB), Brussels, Belgium. Affiliated lecturer at the University of Cambridge; Visiting Professor at the London School of Economics and Political Science; and Honorary Associate Professor at the University of Copenhagen. Editor-in-Chief of the journal International Data Privacy Law published by Oxford University Press. Senior Privacy Counsel in the Brussels office of Wilson Sonsini Goodrich & Rosati LLP. Member of the New York Bar and the Brussels Bar (B-List).
PhD in law, University of Tilburg, Netherlands (2013). LL.M. in International Legal Studies, New York University School of Law (1991). Study at Law Faculty of Cologne University, Germany (1984-1985). Juris Doctor, Notre Dame Law School, United States (1984). B.A. cum laude, Classics, Lawrence University, United States (1980).
Honorary Fellow, Centre for European Legal Studies (CELS), University of Cambridge. Member of the editorial board of the German legal journal Multimedia und Recht, Verlag C.H. Beck. Member of the academic advisory board of the Deutsche Gesellschaft für Datenschutz und Datensicherheit (German Society for Data Protection and Data Security). Member of the Editorial Board of the International Journal of Law and Information Technology (Oxford University Press). Member, UN Global Pulse Data Privacy Advisory Group, United Nations.
Visiting Fellow, Wolfson College, University of Cambridge (2012). Visiting Fellow, Oxford Internet Institute, University of Oxford (2009). Vice-Chair,
Commission on the Digital Economy, and Chairman, Task Force on Privacy and the Protection of Personal Data, International Chamber of Commerce (ICC), Paris (1999-2014). Expert on data protection issues for the Organisation for Economic Co-operation and Development (OECD), including authorship of expert reports. Member of the ICC delegation to the Electronic Commerce Working Group of the United Nations Commission on International Trade Law (UNCITRAL) (1999-2010). Member of the ICC delegation to the Council of Europe Consultative Committee of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (1999-2014). Founder and Chairman,
European Privacy Officers Forum (EPOF) (2002-2012). Member, Working Group on Regulatory Aspects of Network and Information Security, European Network and Information Security Agency (ENISA) of the European Union (2000-2003).
In 2015 awarded the “Best Consumer Supporter” award and medal by the Consumer Affairs Agency of the Government of Japan for expertise in data protection law and promotion of EU data protection law in Japan. In 2010 named by The Burton Foundation as one of the “Best Law Firm Writers of 2010”.

Bing Bing Jia, born 28 October 1966, in Beijing, China.
LLB (Peking University) (1989); DPhil (Oxon.) (1995).
Professor of Law, Law School, Tsinghua University, Beijing, China (since November 2004); Director, Institute of the International Law of the Sea, Innovative Collaboration Centre, Nanjing University (since 2015); Senior Research Fellow and Adjunct Professor, Wuhan University (since 2015). Bok Visiting International Professor, University of Pennsylvania (2017-2018); Visiting Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg (2016); Visiting Scholar, the New York University School of Law (2015); Visiting Professor at the Walther Schücking Institute for International Law, Kiel University, Germany (2010-2011).
Expert in foreign-related civil and commercial cases, Supreme People’s Court
(2015-2018); Consultant in public international law (since 2009); Legal Officer, UN ICTY (1998-2004); Law Clerk, Appeals Chambers, UN ICTY and ICTR (1996-1998).
Member of the Curatorium of The Hague Academy of International Law (since June 2016); Deputy Secretary-General, Chinese Society of the Law of the Sea (since 2014); Member, Executive Council of the Chinese Society of International Law (since 2013); Vice-Chairman, Foundation for the Development of International Law in Asia (DILA) (2006-2016); Member, International Law Association (since 2009).
Member of the Council, Chinese People’s Institute of Foreign Affairs (since 2014) ; Vice Chairman, Degrees Committee, Law School, Tsinghua University (since 2011) ; General Legal Counsel, Office of International Affairs, Tsinghua University (since 2008); English Text Expert, Legal Affairs Commission, Standing Committee of the National People’s Congress of China (since 2005).
Member of the Editorial Board of: Ocean Development and International Law (since 2012) ; Journal of International Criminal Justice (since 2006); Chinese Yearbook of International Law (in Chinese), Chinese Society of International Law (since 2005); Chinese Journal of International Law (since 2002)

Table of contents

EXCERPT FROM TABLE OF CONTENTS (D.COOPER, C. KUNER)
Chapter I. Introduction
A. The globalized nature of commerce and communication
B. Influence of the Internet
C. Growth of data protection law
D. Growth of IDR
E. Conflicts between IDR and data protection
Chapter II. Relevant data protection issues
A. Development of data protection law
B. Important data protection concepts
C. Data localization
Chapter III. Relevant IDR issues
A. Overview
B. Litigation
C. Arbitration
D. A special example: WADA arbitration
Chapter IV. Conflicts between data protection and IDR
A. Introduction
B. Choice of law and jurisdiction in data protection law
C. Evidence collection (discovery) in litigation
D. Evidence collection in WADA sports arbitration cases
E. Sports cases pending before the European Court of Human Rights
F. Blocking statutes
G. Parties caught in the middle
Chapter V. Reconciling data protection and IDR
A. Introduction
B. Scope of the problem
C. Relevant issues
D. Mechanisms for managing conflicts
E. Developing a more global perspective
F. Taking data protection into account in IDR requirements
G. Taking IDR into account in data protection law
H. Conclusions
Bibliography

EXCERPT FROM TABLE OF CONTENTS (B. B. JIA)
Chapter I. Introduction
A. Scope of “development”
B. A realistic view of judicial function
C. Terminology : judicial decisions, precedents, case law, and jurisprudence.
D. International decisions and national decisions in which international law is applicable law
E. Structure and premise of the course
Chapter II. Status of precedents in international law: Article 38 (1) (d) ICJ Statute
A. Material and formal sources of international law
B. The adoption of Article 38 (1) (d) of the PCIJ Statute
C. A subsidiary means to determine rules of international law
Chapter III. The doctrine and practice of precedent in municipal law
A. The doctrine of precedent
B. General applicability of the doctrine
C. The declaratory school of thought as known in domestic legal systems
D. Binding precedents in a hierarchically structured judicial system
Chapter IV. The emergent doctrine of precedent in international law
A. PCIJ and ICJ
B. ICTY/ICTR
C. WTO DSB
D. ICC
E. CJEU
F. ECtHR
G. IACHR
H. ICSID arbitrations
I. Conclusion
Chapter V. Notions of municipal law applicable in the doctrine of precedent of international law
A. Law-making by precedent: the role of analogy
B. Law-making by precedent: distinguishing and overruling
C. Judicial decisions may be either authoritative or persuasive precedents
D. The (convenient) distinction between ratio decidendi and obiter dictum
Chapter VI. The development of international law by case law in the strict sense
A. Judge-made law and judicial legislation
B. The law of maritime delimitation
C. The doctrine of command responsibility
D. The doctrine of inter-temporal law
E. Interpretation of treaties
F. Relevance of general principles of law under Article 38 (1) (c)
G. The impact of the policy-oriented approach
H. Judicial legislation : inherent power and the power to determine rules of procedure (and evidence)
Chapter VII. Precedents in the development of customary law
A. ICJ’s approach
B. Clarification of customary law
C. Declaration of the existence of customary law
D. Remark
Chapter VIII. Effect of development
A. Criteria for evaluation
B. Authoritative precedents
C. Development that fails to settle the law
D. Distinguishing
E. Can the potential for law-making be put beyond the competence of a court ?
Chapter IX. Conclusions
A. An emergent doctrine of precedent
B. Precedents as a source of mixed nature: rules of recognition
C. Development of international law by precedents
Bibliography.

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