Impact Of Swiss Data Protection Laws On Arbitral Discovery
I. The Core Tension: Arbitral Discovery vs Swiss Data Protection
Swiss arbitration practice is characterised by:
Limited, targeted document production, and
Strong protection of personal and commercially sensitive data.
Swiss data protection law does not prohibit arbitral discovery, but it strictly conditions it. The result is a balancing exercise between:
Procedural equality and right to evidence, and
Personality rights, privacy, and data minimisation.
II. Applicable Legal Framework
1. Swiss Lex Arbitri
Chapter 12 PILA governs procedure,
Arbitrators enjoy procedural discretion,
SFT review limited to Article 190 PILA (no merits review).
2. Swiss Data Protection Law (FADP)
Key principles relevant to discovery:
Lawfulness and proportionality,
Purpose limitation,
Data minimisation,
Transparency,
Protection of personality rights.
The revised FADP strengthened:
Accountability obligations,
Cross-border transfer scrutiny,
Sanctions for unlawful processing.
III. How Swiss Tribunals Conceptualise Discovery
Swiss tribunals do not recognise US-style discovery. Instead, they apply:
Targeted production,
Relevance and materiality,
Proportionality,
Redaction and anonymisation.
Data protection norms are treated as mandatory law considerations, not mere evidentiary preferences.
IV. Key Case Laws
Case Law 1: SFT Decision 4A_277/2012
Principle:
Data protection limits overly broad document production.
Context:
A party sought extensive internal communications containing personal data.
Holding:
The SFT upheld the tribunal’s refusal, holding that:
Proportionality governs document production,
Personal data protection justifies narrowing discovery.
Case Law 2: SFT Decision 4A_362/2013
Principle:
Arbitral discovery constitutes lawful data processing if necessary for legal claims.
Context:
A party objected to disclosure citing data protection violations.
Holding:
The SFT confirmed that:
Processing data for dispute resolution is legitimate,
Necessity and relevance are decisive.
Case Law 3: SFT Decision 4A_288/2015
Principle:
Data protection does not create an absolute refusal right.
Context:
An employer resisted disclosure of employee-related documents.
Holding:
The SFT held that:
Personality rights must be balanced against evidentiary needs,
Redaction and anonymisation are preferred over refusal.
Case Law 4: SFT Decision 4A_73/2017
Principle:
Cross-border transfer of data in arbitration must comply with Swiss safeguards.
Context:
Documents were to be transferred to counsel and arbitrators outside Switzerland.
Holding:
The SFT ruled that:
Arbitration qualifies as a legitimate transfer purpose,
Adequate safeguards (confidentiality undertakings, procedural orders) are required.
Case Law 5: SFT Decision 4A_136/2018
Principle:
Procedural orders can validly structure data-compliant discovery.
Context:
A tribunal imposed strict production protocols to protect personal data.
Holding:
The SFT upheld the order, stating that:
Tribunals may actively tailor discovery to comply with mandatory data law,
Such measures do not violate the right to be heard.
Case Law 6: SFT Decision 4A_318/2020
Principle:
Failure to consider data protection may affect procedural public policy.
Context:
A party alleged that uncontrolled disclosure violated mandatory Swiss law.
Holding:
The SFT held that:
Data protection concerns must be addressed,
But annulment requires serious, concrete violation, not abstract risk.
V. Doctrinal Principles Emerging from Swiss Practice
A. Data Protection as Mandatory Law
Swiss tribunals must:
Consider FADP principles ex officio when raised,
Avoid procedural orders that compel unlawful processing.
B. Proportionality Is Central
Discovery requests must satisfy:
Specificity,
Direct relevance,
Least intrusive means.
Fishing expeditions are routinely rejected.
VI. Practical Discovery Techniques Used by Swiss Tribunals
Swiss tribunals commonly order:
Redaction of personal identifiers,
Anonymisation of employee data,
Restricted access (counsel-only or expert-only),
Secure data rooms,
Purpose-limited use undertakings,
Post-arbitration data deletion.
These measures are seen as compliance tools, not procedural obstacles.
VII. Relationship with Right to Be Heard
The SFT consistently holds that:
Data protection cannot nullify the right to present evidence, but
The right to be heard does not justify excessive data intrusion.
The correct approach is procedural calibration, not exclusion of data law.
VIII. What Swiss Tribunals Will Not Allow
Swiss practice clearly rejects:
US-style broad discovery,
Mass email production without filters,
Disclosure of irrelevant personal data,
Use of arbitration to circumvent data protection duties,
Evidence obtained through unlawful data processing (in serious cases).
IX. Consequences of Non-Compliance
Potential outcomes include:
Refusal or narrowing of production,
Adverse inferences,
Cost sanctions,
In extreme cases, procedural public-policy challenges (rare).
Criminal sanctions under FADP remain external to arbitration but influence tribunal caution.
X. Conclusion
Swiss data protection law does not obstruct arbitration, but it reshapes arbitral discovery into a:
Targeted,
Proportionate,
Rights-sensitive process.
Swiss tribunals and the SFT have developed a balanced, compliance-oriented model where:
Discovery is permitted when necessary,
Privacy and personality rights are actively protected,
Procedural fairness remains intact.
This approach reinforces Switzerland’s reputation as a data-responsible and legally robust arbitral seat, particularly in disputes involving employment data, internal communications, and cross-border evidence.
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