Introduction

With the continuous development of the digital economy, data has become a crucial production factor, serving as a key driver for high-quality development, accelerating the construction of Digital China, and building a modern digital industrial system. As the scale of the digital market continues to expand, the number of data-related disputes is also on the rise. Compared to litigation, which is often time-consuming and procedurally complex, arbitration offers advantages such as flexibility, convenience, efficiency, confidentiality, and high international enforceability, making it potentially more suitable for resolving disputes in the data market. However, as a non-judicial dispute resolution mechanism, the scope of disputes that can be submitted to arbitration is relatively limited. Whether data-related disputes can be resolved through arbitration depends not only on the parties' ability to reach an arbitration agreement in practice, but also on whether the dispute itself is arbitrable. This article focuses on the feasibility of resolving data disputes through arbitration from the perspective of arbitrability, aiming to provide reference for the selection of appropriate dispute resolution mechanisms for data-related matters. 

Ⅰ. Criteria for Determining Arbitrability

Article 4 of the Arbitration Law of the People's Republic of China provides: "Where parties resolve disputes by arbitration, they must do so voluntarily and reach an arbitration agreement. In the absence of an arbitration agreement, if one party applies for arbitration, the arbitration commission shall not accept the case." Article 17, paragraph 1, further stipulates: "An arbitration agreement is invalid under any of the following circumstances: (1) the matters agreed to be arbitrated exceed the scope of arbitration prescribed by law." Thus, the arbitrability of the subject matter is a fundamental prerequisite for the validity of an arbitration agreement and for the submission of disputes to arbitration. 

When acceding to the New York Convention, China made a commercial reservation, initially defining the scope of arbitrable matters as "contractual and non-contractual commercial legal relationships." The Supreme People's Court's Notice on the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China further specified this as "economic rights and obligations arising from contracts, torts, or as provided by relevant laws." On this basis, Articles 2 and 3 of the subsequently enacted Arbitration Law further clarify the criteria for arbitrability from both positive and negative perspectives: "Disputes arising from contracts and other property rights between citizens, legal persons, and other organizations with equal legal status may be arbitrated." "The following disputes may not be arbitrated: (1) disputes over marriage, adoption, guardianship, support, and inheritance; (2) administrative disputes that must be handled by administrative authorities in accordance with the law." 

Specifically, at the level of parties, Article 2 of the Arbitration Law limits arbitrable disputes to those between "citizens, legal persons, and other organizations with equal legal status," while Article 3, paragraph 2 excludes "administrative disputes that must be handled by administrative authorities in accordance with the law," thereby restricting arbitration to disputes between civil and commercial entities with equal status. Arbitration, as a dispute resolution method based on party autonomy, requires both parties to have equal status and rights, ensuring that free will is not compromised by disparities in party status and safeguarding the parties' right to choose. Otherwise, there would be no room for the parties to reach an arbitration agreement based on autonomy of will, and the dispute could not be resolved through arbitration.

At the level of subject matter, the Legislative Affairs Commission of the Standing Committee of the National People's Congress, in its Explanation on the Draft Arbitration Law of the People’s Republic of China (《关于<中华人民共和国仲裁法（草案）>的说明》), pointed out that the matters subject to arbitration should be those over which the parties have the right of disposition, with the scope of arbitration primarily covering contractual disputes and certain non-contractual economic disputes[1]. On the one hand, the disposability of the subject matter is the objective basis for the parties to enter into an arbitration agreement based on autonomy of will and to resolve disputes through arbitration, which is essentially a private, industry-based activity. This means that arbitrable matters must be substantive rights that the parties have the right to dispose of; disputes involving personal relationships, for example, cannot be submitted to arbitration.[2] On the other hand, arbitration is essentially a private act, and arbitration institutions are not state organs; they have no authority to adjudicate matters that should be governed by public law. Arbitrable matters should be limited to contractual or other economic disputes involving property rights, and should not include disputes involving public interests or personal rights. For disputes involving public interests, although some parties may initiate arbitration based on autonomy of will and agree to be bound by the arbitral award, such disputes often have a broad impact, and the enforceability of the award may substantially affect the rights of other parties. Therefore, such disputes typically possess public law attributes and are not suitable for arbitration. For disputes involving personal rights, especially those involving personal injury, the boundaries between private and public law are often blurred, making them equally unsuitable for resolution by arbitration[3].

Ⅱ. Analysis of the Arbitrability of Data-Related Disputes

In recent years, with the rapid development and widespread application of advanced technologies such as artificial intelligence, the commercial value of data has been increasingly recognized, and the data trading market has developed rapidly. In the processes of data collection, processing, trading, and circulation, various types of data disputes have emerged, including data infringement, data contract, and data unfair competition disputes. The legal relationships involved in different types of data disputes vary, and so does their arbitrability. 

From a theoretical perspective, the prevailing view is that the rights and interests enjoyed by data processors over the data they control constitute a type of property right[4]. The Opinions of the Central Committee of the Communist Party of China and the State Council on Establishing a Data Governance System to Better Leverage the Role of Data as a Factor of Production (《中共中央 国务院关于构建数据基础制度更好发挥数据要素作用的意见》) also points out that, under the national data classification and graded protection system, efforts should be made to promote affirmation and authorized use of classified and graded data, and market-oriented circulation and trading of data, improve the system for protecting data element rights, and gradually form a data property rights system with Chinese characteristics. This explicitly affirms the property nature of data. In other words, data rights and interests should be regarded as a type of property right. Therefore, contractual disputes and other property rights disputes arising from data rights should be arbitrable. 

In judicial practice, some domestic arbitration institutions have issued arbitration rules related to data disputes, explicitly including disputes arising from data-related contracts and other property rights as arbitrable matters. For example, the Wuhan Arbitration Commission, in its Data Dispute Arbitration Rules (《数据争议仲裁规则》), clearly provides that “the data disputes referred to in these Rules are disputes arising from contracts or other property rights between natural persons, legal persons, and unincorporated organizations, including but not limited to: (1) disputes arising from the collection, storage, use, processing, transmission, provision, disclosure, deletion, or destruction of data; (2) disputes arising from data transactions and related matching, agency, or borkerage services; (3) disputes regarding data compliance assessments, data quality assessments, or data value assessments; (4) disputes regarding data registration services; (5) disputes regarding data financing; (6) disputes regarding data insurance; (7) other data-related disputes." [5]Similarly, the Shanghai International Economic and Trade Arbitration Commission, in its Data Arbitration Rules, specifies that "data disputes under these Rules include, but are not limited to, the following contractual and property rights disputes: (1) data processing, storage, and data collection and analysis; (2) data transactions, delivery, and settlement; (3) data registration services; (4) data compliance assessment, quality assessment, and asset assessment; (5) data transaction matching, agency, and brokerage; (6) transactions, delivery, financing, and settlement related to data assets; (7) other transactions related to data generation, collection, storage, processing, analysis, circulation, services, application, and security." [6]

In summary, where there is a valid arbitration agreement between the parties, arbitration may be sought for data-related contractual and other property rights disputes. However, given the diversity of data disputes, it is necessary to further clarify which common types of data disputes fall within the arbitrable category of "other property rights disputes," and which common types of data disputes are not arbitrable.

1. Arbitrability of Data Infringement Disputes

(1) Arbitrability of Data Rights Infringement Disputes 

Given that data rights have not yet been classified as property rights, contractual rights, or personality rights, nor have they attained the status of independent named rights, there is currently no corresponding independent causes of action for data rights infringement disputes. As a result, a significant portion of data rights infringement disputes in current practice can only be brought as unfair competition disputes, seeking remedies under the relevant provisions of the Anti-Unfair Competition Law. However, in fact, such disputes possess strong characteristics of infringement disputes. 

The Supreme People's Court's Notice on the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China (《最高人民法院关于执行我国加入的<承认及执行外国仲裁裁决公约>的通知》) explicitly states that"contractual and non-contractual commercial legal relationships" specifically refer to economic rights and obligations arising from contracts, torts, or relevant legal provisions. According to this provision, China effectively recognizes the arbitrability of  tort disputes arising from commercial legal relationships[7]. Judicial practice has also supported this view, holding that if an infringement dispute arises from a contract, it falls within the scope of "disputes related to contracts" and remains subject to the arbitration clause in the contract. The parties may not evade the arbitration clause by subsequently choosing the cause of action. For example, in the Supreme People's Court case (2020) Zhi Min Zhong 1360-1, the Court held: "When interpreting the scope of an arbitration clause, if an infringement dispute arises from a breach of contractual obligations, and there is a concurrent application of breach of contract liability and tort liability, the plaintiff, even if it chooses to bring the claim on the grounds of infringement, remains bound by the contractual arbitration clause, and the parties should not be permitted to evade the application of the arbitration clause by subsequently choosing the cause of action. … In this case, Company A and Company B entered into a 'Service Master Agreement’ and subsequently engaged in an infringement dispute. This case involved concurrent liability for breach of contract and tort. Company A chose to file a lawsuit on the grounds of infringement but remained bound by the arbitration clause. In this case, Company A sued Company B as one of the co-defendants for infringement of trade secrets, effectively circumventing the arbitration jurisdiction, and such conduct should not be supported." Similar rulings were made in cases such as (2018) Supreme Court Civil Jurisdiction Appeal No. 453 and (2021) Supreme Court Intellectual Property Civil Appeal No. 1934. 

Based on the aforementioned regulations and judicial precedents, disputes involving infringement of data rights should fall within the scope of property rights disputes. In cases where an effective arbitration agreement exists, when parties seek remedies based on claims of infringement of property rights or allegations that the other party has violated the provisions of the Anti-Unfair Competition Law, such disputes generally possess arbitrability.

（2）Arbitrability of Data-Related Trade Secret Infringement Disputes

Article 9 of the Anti-Unfair Competition Law prescribes that "Commercial secrets referred to in this Law shall mean commercial information such as technical information and business information, which is not known to the public and has commercial value and for which the rights holder has adopted the corresponding confidentiality measures." If the data containing confidential commercial information is improperly obtained by one party, in disregard of confidentiality measures taken by the right holder, the dispute arising from such data may be categorized as dispute of commercial secrets infringement. Considering that the rights and interests over commercial secrets are categorized as property rights and interests, and the disputes over commercial secrets are not disputes inappropriate for arbitration as clearly prescribed in Article 2 and Article 3 of the Arbitration Law, the disputes arising from the infringement of commercial secrets are arbitrable, and can be settled through arbitration under the premise of a valid arbitration agreement.

It is noteworthy that, in practice, when determining the arbitrability of a commercial secrets infringement dispute, the court will take into account whether there are circumstances affecting third parties or the public interest. For instance, in the case of (2021) Zui Gao Fa Zhi Min Zhong No.1934, the Supreme People’s Court stated that "The Court holds that, first, pursuant to Article 3 of the Arbitration Law, disputes over property rights and interests such as infringement of technical secrets are not disputes unequivocally non-arbitrable as prescribed in the Arbitration Law. Second, since the appellant alleges that the appellee infringed its commercial secrets, a review of the provisions regarding commercial secrets in the contract and the supplemental contract along with the performance thereof will be necessary in the trial of this dispute. The scope of this dispute remains within the contractual disputes as agreed in the arbitration clause. Third, the parties to this dispute are also the parties to the relevant contract, no interest of others or the public is involved, so this dispute still falls within the binding scope of the arbitration clause of the contract."

2. Arbitrability analysis of data monopoly disputes

In practice, the big data industry is one of the sectors most significantly affected by the Matthew effect. Established digital giants can often easily gain a data competitive advantage sufficient to exclude similar companies from entering the market, while also increasing the cost for users to switch service providers, thereby forming a monopoly position. Although there remains some debate in both international academic and practical circles regarding the arbitrability of monopoly disputes, based on previous cases, the dominant academic and practical views in China adopt a negative stance on the arbitrability of monopoly disputes.

As stated by the Supreme People's Court in case (2024) Zhi Min Zhong 748: "Although the contract in question stipulates that disputes arising during the performance of the contract may be resolved through arbitration, the review of this case is not limited to the contractual rights and obligations between Tan and the company as stipulated in the contract. It also involves determining whether the company holds a dominant market position and whether it has engaged in abusive conduct of such a position. Furthermore, whether the company has committed the alleged monopolistic conduct directly relates to the fair market competition order, consumer interests, and public interests. Therefore, the existence of an arbitration agreement between the parties cannot automatically exclude the People's Court from hearing this case. This case falls within the jurisdiction of the People’s Court." 

In summary, based on the current judicial practice in China, since data monopoly disputes directly involve the interests of other parties beyond the arbitration agreement and even public interests, the arbitration agreement between the parties cannot exclude the People's Court from accepting cases involving data monopoly disputes arising from the performance of the contract.

3. Arbitrability of Disputes Related to the Authorized Operation of Public Data

The 14th Five-Year Plan for National Economic and Social Development and the Long-Range Objectives Through the Year 2035 of the People's Republic of China proposes to carry out pilot programs for the authorized operation of government data and encourage third parties to further explore and utilize public data. The Opinions of the Central Committee of the Communist Party of China and the State Council on Establishing a Data Governance System and Better Leveraging the Role of Data as a Factor of Production (《中共中央国务院关于构建数据基础制度更好发挥数据要素作用的意见》) also explicitly states the need to "promote the implementation of a mechanism for the clarification of rights and authorization of public data." In recent years, many local governments have actively responded to the national call and successively issued local regulations and other normative documents related to data, and have made attempts in the authorization and operation of public data. On March 1, 2025, the National Public Data Resource Registration Platform officially went live, further providing a guarantee for the practice of public data authorization and operation. 

Some scholars have found through continuous tracking, research, and analysis of various regions and industries that China’s current public data authorization and operation model can be divided into two categories based on the method of authorization: administrative authorization and agreement authorization. The former refers to administrative authorities granting corresponding rights through licensing, concession, administrative decisions, etc., while the latter refers to authorization through an authorization agreement[8]. Other scholars have pointed out that, as for the agreement authorization model, private entities possess the autonomy to decide whether to apply for authorization and what type of data to authorize for operation. Additionally, the purpose of public data authorization operation agreements is to achieve public interest objectives. The legal relationship formed between the government and private entities is an administrative legal relationship. Therefore, public data authorized operations possess consensus, administrative nature, and profitability, and should be classified as administrative contractual acts[9]. 

Regarding administrative authorization-type public data authorization and operation disputes, since such authorization models involve government agencies legally granting rights or qualifications to administrative counterparts through administrative acts such as administrative permits, the resulting disputes should be classified as administrative disputes. According to Article 3(2) of the Arbitration Law, such disputes are not arbitrable. Regarding disputes arising from public data authorization operations based on agreement authorization, Article 26 of the Supreme People's Court's Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases provides that "if an administrative agreement contains an arbitration clause, the people's court shall declare such clause invalid, unless otherwise provided by law, administrative regulations, or international treaties concluded or acceded to by China." Therefore, if a public data authorization operation agreement is deemed to have the nature of an administrative agreement, the disputes arising therefrom are also not arbitrable.

It is worth noting that, given that China has not yet fully implemented public data authorized operations at the national level and has not enacted relevant laws and regulations to specifically regulate such matters, it is possible that other models beyond administrative authorization and administrative agreement authorization may emerge in practice and piloting. If an administrative agency enters into a public data authorization operation agreement or a franchise agreement with a private entity without specifying administrative matters such as administrative permits, such agreements may be recognized by the courts as civil and commercial contracts. For example, in the Supreme People's Court case (2015) Min Yi Zhong Zi No. 244, the Court stated: "This case is a typical BOT-model government franchise agreement… Although one party to the contract is a municipal government, the other party, a company, still enjoys full autonomy of will in entering into the contract and determining its content, and is not subject to unilateral administrative compulsion. The contract includes specific rights, obligations, and breach of contract liabilities, all of which reflect the equal and equivalent mutual agreement of both parties. The contract in this case does not merely address administrative approval or administrative licensing matters themselves. The relevant administrative approvals and administrative licensing matters involved in the contract constitute part of the contract and are part of the contractual performance, and therefore cannot determine the nature of the contract in question. From the perspective of the purpose, responsibilities, parties, conducts, and content of the contract in this case, the contract clearly has the nature of a civil and commercial legal relationship and should be characterized as a civil and commercial contract…" If the aforementioned circumstances arise, it cannot be ruled out that disputes arising from such agreement may be resolved through arbitration.

4. Arbitrability of Personal Information Infringement Disputes

Compared to purely data property rights, personal information rights, which are included in the Personality Rights Chapter of the Civil Code, clearly possess a stronger personality rights character. As previously discussed, disputes over personal information rights, as part of personality rights, cannot generally be resolved through arbitration based on an arbitration agreement under the Arbitration Law of the People's Republic of China.

Apart from the factor that personal rights are not freely disposable, there are additional reasons for this.  On the one hand, as natural persons, personal information providers often occupy a disadvantaged position in disputes related to personal information. The arbitration procedure is less familiar to natural persons, and its characteristic of finality makes it more challenging for personal information providers lacking technical or legal knowledge to protect their rights in arbitration proceedings. On the other hand, similar to bodily rights and other personality rights, personal information infringement may cause significant harm to the personal information subject, which is easily convertible into criminal offences subject to criminal law. For example, if a personal information processor fails to properly fulfill its obligations under the Personal Information Protection Law and other relevant laws and regulations and discloses part of the non-sensitive personal information of the personal information subject, the processor would only constitute a civil tort, and the dispute between the parties could be resolved through civil law. However, if a personal information processor provides sensitive personal information of a personal information subject to criminals, resulting in serious harm to the personal information subject's personal or property safety, the relevant dispute is no longer a purely civil or commercial dispute but should be subject to the Criminal Law. In summary, we preliminarily believe that it is difficult for personal information infringement disputes to be considered arbitrable.

Ⅲ. Advantages and Prospects of Resolving Data Disputes Through Arbitration

1. Advantages of Arbitration

（1）Efficiently Addressing the Growing Demand for Data Dispute Resolution

Data is time-sensitive, and its value is highly dependent on data circulation. Therefore, in data disputes, all parties hope to resolve disputes quickly so that data can return to free circulation as soon as possible. Compared to the rigid and lengthy litigation process, arbitration is undoubtedly a more flexible, swift, and efficient method of dispute resolution. Parties can freely choose the arbitration institution or arbitrator, avoiding potential jurisdictional disputes, and can select expedited arbitration procedures under specific arbitration rules to obtain swift relief. The finality of arbitration further ensures the efficiency of dispute resolution. Thus, arbitration, which offers greater advantages in terms of timeliness and flexibility, may better align with the actual needs of all parties involved in data disputes.

（2）Confidentiality and Strong Privacy Protection

Compared to litigation proceedings, which are generally public, arbitration proceedings are characterized by confidentiality. Generally, arbitration awards are not made public, which further ensures that personal information involved in a case will not be known to the public after the dispute is resolved, thereby protecting the privacy rights of the parties. In litigation, although courts also take certain measures to protect personal information, the Civil Procedure Law stipulates that people's courts shall publicly announce judgments for both public and non-public trials, which to some extent increases the risk of personal information leakage.

2. Future Directions for Data Dispute Arbitration

In December 2022, the Central Committee of the Communist Party of China and the State Council issued the Opinions on Establishing a Basic Data System and Better Leveraging the Role of Data as a Factor of Production (《中共中央国务院关于构建数据基础制度更好发挥数据要素作用的意见》), which put forward the important proposal of "orderly cultivating third-party professional service institutions such as dispute arbitration, enhancing the full-process service capabilities throughout the entire process of  data circulation and transactions, smoothing channels for reporting, complaints, and dispute arbitration, and maintaining the good order of the data element market." Notably, some arbitration committees have already established specialized arbitration centers focused on data-related matters, such as the Digital Economy Arbitration Center established by the Beijing Arbitration Commission in the second half of 2024. For example:

Conclusion

Arbitration, as a more flexible, convenient, efficient, and confidential dispute resolution method, is better suited to the rapidly developing digital economy environment. It can assist parties in efficiently resolving data disputes, offering unique advantages. Amid the wave of the data revolution, the practical experience and institutional theories of data arbitration will be further accumulated and improved in the future, and the scope of arbitrable data disputes will become clearer. At that time, enterprises engaged in data-related businesses may consider including arbitration as an alternative dispute resolution option, and choose arbitration proceedings to resolve data disputes based on their specific business characteristics. 

Footnotes：

[1] See Gu Angran: ‘Explanation on the Draft Arbitration Law of the People's Republic of China — Delivered at the Eighth Session of the Standing Committee of the Eighth National People's Congress on 28 June 1994,’ published in the Bulletin of the Standing Committee of the National People's Congress of the People's Republic of China, Issue 6, 1994, pp. 14–16.

[2] See the Civil Ruling of the Supreme People's Court (2021) Supreme Court Intellectual Property Civil Appeal No. 1934.

[3] See Wang Jinlan and Wang Wei, 'On the Arbitrability of Tortious Acts,' in Hebei Law Review, No. 10, 2004, pp. 106-108.

[4] See Zhang Xinbao, 'On Data Property Rights as a New Type of Property Right,’ China Social Sciences, No. 4, 2023, pp. 144-163+207; Wu Handong, 'Legislative Choices for Granting Property Rights to Data,’ Legal Science (Journal of Northwest University of Political Science and Law), Vol. 41, No. 4, 2023, pp. 44-57;Wang Liming, ‘Why and How to Establish Rights Over Data,' in Legal Studies, Vol. 45, No. 4, 2023, pp. 56-73.

[5] See Wuhan Arbitration Commission: 'Data Arbitration Rules of the Wuhan Arbitration Commission (Wuhan International Arbitration Centre),’ available on the official website of the Wuhan Arbitration Commission, https://www.whac.org.cn/zcgz/4348.html, last accessed on 5 March 2025

[6] See Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre): ‘Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre) Data Arbitration Rules (2024),' available on the official website of the Shanghai International Economic and Trade Arbitration Commission,https://www.shiac.org/pc/SHIAC?moduleCode=arbitrate_rules&securityId=G_L6D9RCYOzCyaQudnlVTA, last accessed on 5 March 2025.

[7] See Zhou Gaoyan: 'The Boundaries of Arbitral Awards in Commercial Arbitration Disputes Involving Tort Liability,' published on the official WeChat account of the Mianyang Arbitration Commission, https://mp.weixin.qq.com/s/88Cy2-gbgVdZfDGuLYiC3g, last accessed on 5 March 2025.

[8] See Meng Qingguo, Wang Youkui, and Wang Lida, 'Public Data Openness, Utilisation, and Authorised Operation: Connotations, Models, and Mechanisms,' China Administrative Management, Vol. 40, No. 9, 2024, pp. 43–53 + 159.

[9] See Song Shuo, ‘The Allocation of Rights and Responsibilities in the Authorised Operation of Public Data,’ Law Forum, Vol. 39, No. 5, 2024, pp. 99-111; Yang Jie, ‘The Authorised Operation of Public Data: Theoretical Exploration, Practical Analysis, and Improvement Pathways,’ Information Security and Communications Privacy, No. 4, 2024, pp. 60-68.

Source:   King & Wood Mallesons

Authors:

• Zhu Han，Associate Intellectual Property Group
• Liu Chang，Associate Compliance & Regulatory Group
• Zhang Qinhong，Associate Assistant Intellectual Property Group
• Thanks to Elle Zhang（Singapore）、Zhang Yueqi（Singapore）、Jessica Tao（Sydney） for their contributions to this article.