10/1/2020
The Brazilian General Data Protection Law (LGPD) impacts the daily lives of various organizations and practices, including arbitration.
Influenced by the rules and principles of the General Data Protection Regulation (GDPR), the Brazilian law placed Brazil on the same level as the countries of the European Union with regard to the legal protection of personal data
In order to protect individuals’ personal data and privacy, LGPD considers information related to the identified or identifiable natural person to be personal data. Data processing, on the other hand, encompasses any operation carried out with personal data, presenting a wide range of operations carried out in manual or digital media.
In this sense, the processing of personal data can only be carried out if based on any of the legal hypotheses stipulated in art. 7 of the LGPD, such as, for example, the consent of the holder. Thus, the autonomy of the will is an important pillar to authorize the processing of personal data, acting decisively so that they may or may not be the object of the various transactions listed in the law.
However, in spite of the fact that consent is the hypothesis of data processing most easily verified in practice, there are some situations in which the LGPD admits the processing of personal data without the consent of its owner. Among these situations is the hypothesis of the regular exercise of rights in arbitration proceedings.
According to article 7, item VI, the processing of personal data for the regular exercise of rights in an arbitration proceeding is authorized, under the terms of Law 9.307 / 96 (Arbitration Law). Likewise, article 11, item II, point d) of the LGPD allows sensitive personal data to be processed even without the consent of the data subject, when the legal basis for said treatment is the regular exercise of rights in arbitration proceedings, under the terms of the Arbitration Law.
The other legal or natural persons involved in the procedure, such as the arbitral tribunal, the arbitral chamber, experts and technical assistants are also authorized to process personal data due to their legitimate interest in the administration of the procedure, in the verification of technical, factual aspects. and legal aspects of the case or in resolving the dispute.
Thus, to avoid controversy, it is recommended to include, in the arbitration clause and in the arbitration term, express authorization for the processing of personal data during the arbitration procedure.
The firm continues to monitor legislative changes and is available to assist its clients in adopting the best strategy for their business, considering the new perspectives introduced by LGPD and its impacts on arbitration.
Author: Juliana Ruiz Costa
