{
  "url": "https://openlegislation.uk/eu-decision-2016-1250/annex-I/annex-2",
  "json_url": "https://openlegislation.uk/eu-decision-2016-1250/annex-I/annex-2.json",
  "legislation": "eudn/2016/1250",
  "legislation_title": "Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (notified under document C(2016) 4176) (Text with EEA relevance) (revoked)",
  "legislation_url": "https://openlegislation.uk/eu-decision-2016-1250",
  "path": "annex/I/annex/2",
  "kind": "appendix",
  "number": "Annex 2",
  "heading": "Arbitral Model",
  "text": "ANNEX I\nThis Annex I provides the terms under which Privacy Shield organizations are obligated to arbitrate claims, pursuant to the Recourse, Enforcement and Liability Principle. The binding arbitration option described below applies to certain ‘residual’ claims as to data covered by the EU-U.S. Privacy Shield. The purpose of this option is to provide a prompt, independent, and fair mechanism, at the option of individuals, for resolution of claimed violations of the Principles not resolved by any of the other Privacy Shield mechanisms, if any.\nA.\nScope\nThis arbitration option is available to an individual to determine, for residual claims, whether a Privacy Shield organization 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 or with respect to an allegation about the adequacy of the Privacy Shield.\nB.\nAvailable Remedies\nUnder this arbitration option, the Privacy Shield 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 arbitration panel with respect to remedies. In considering remedies, the arbitration panel is required to consider other remedies that already have been imposed by other mechanisms under the Privacy Shield. No damages, costs, fees, or other remedies are available. Each party bears its own attorney's fees.\nC.\nPre-Arbitration Requirements\nAn 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 the organization and afford the organization an opportunity to resolve the issue within the timeframe set forth in Section III.11(d)(i) of the Principles; (2) make use of the independent recourse mechanism under the Principles, which is at no cost to the individual; and (3) raise the issue through their Data Protection Authority to the Department of Commerce and afford the Department of Commerce an opportunity to use best efforts to resolve the issue within the timeframes set forth in the Letter from the International Trade Administration of the Department of Commerce, at no cost to the individual.\nThis 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 an EU Data Protection Authority (1) has authority under Sections III.5 or III.9 of the Principles; 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 data controller does not alone preclude invocation of this arbitration option against a different legal entity not bound by the DPA authority.\nD.\nBinding Nature of Decisions\nAn 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.\nE.\nReview and Enforcement\nIndividuals and Privacy Shield organizations will be able to seek judicial review and enforcement of the arbitral decisions pursuant to U.S. law under the Federal Arbitration Act. Any such cases must be brought in the federal district court whose territorial coverage includes the primary place of business of the Privacy Shield organization.\nThis 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 or U.S. courts, or FTC proceedings.\nF.\nThe Arbitration Panel\nThe parties will select the arbitrators from the list of arbitrators discussed below.\nConsistent with applicable law, the U.S. Department of Commerce and the European Commission will develop a list of at least 20 arbitrators, chosen on the basis of independence, integrity, and expertise. The following shall apply in connection with this process:\nArbitrators:\n(1)will remain on the list for a period of 3 years, absent exceptional circumstances or for cause, renewable for one additional period of 3 years;\n(2)shall not be subject to any instructions from, or be affiliated with, either party, or any Privacy Shield organization, or the U.S., EU, or any EU Member State or any other governmental authority, public authority, or enforcement authority; and\n(3)must be admitted to practice law in the U.S. and be experts in U.S. privacy law, with expertise in EU data protection law.\nG.\nArbitration Procedures\nConsistent with applicable law, within 6 months from the adoption of the adequacy decision, the Department of Commerce and the European Commission will agree to adopt an existing, well-established set of U.S. arbitral procedures (such as AAA or JAMS) to govern proceedings before the Privacy Shield Panel, subject to each of the following considerations:\n1..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.\n2..Procedures will be developed to ensure that an individual's same claimed violation does not receive duplicative remedies or procedures.\n3..FTC action may proceed in parallel with arbitration.\n4..No representative of the U.S., EU, or any EU Member State or any other governmental authority, public authority, or enforcement authority may participate in these arbitrations, provided, that at the request of an EU individual, EU DPAs may provide assistance in the preparation only of the Notice but EU DPAs may not have access to discovery or any other materials related to these arbitrations.\n5..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.\n6..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 panel finds that, under the circumstances of the specific arbitration, this would lead to unjustified or disproportionate costs.\n7..Materials submitted to arbitrators will be treated confidentially and will only be used in connection with the arbitration.\n8..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.\n9..Arbitrations should be completed within 90 days of the delivery of the Notice to the organization at issue, unless otherwise agreed to by the parties.\nH.\nCosts\nArbitrators should take reasonable steps to minimize the costs or fees of the arbitrations.\nSubject to applicable law, the Department of Commerce will facilitate the establishment of a fund, into which Privacy Shield organizations will be required to pay an annual contribution, based in part on the size of the organization, which will cover the arbitral cost, including arbitrator fees, up to maximum amounts (‘caps’), in consultation with the European Commission. The fund will be managed by a third party, which will report regularly on the operations of the fund. At the annual review, the Department of Commerce and European Commission will review the operation of the fund, including the need to adjust the amount of the contributions or of the caps, and will consider, among other things, the number of arbitrations and the costs and timing of the arbitrations, with the mutual understanding that there will be no excessive financial burden imposed on Privacy Shield organizations. Attorney's fees are not covered by this provision or any fund under this provision.",
  "extent": "E+W+S+N.I.",
  "status": "repealed",
  "version": "current",
  "annotations": [
    {
      "type": "F",
      "label": "F1",
      "text": "Decision revoked (31.12.2020) by The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (S.I. 2019/419), Sch. 3 para. 1(o); 2020 c. 1, Sch. 5 para. 1(1)"
    }
  ],
  "outstanding_effects": [],
  "provenance": {
    "source": "legislation.gov.uk",
    "source_url": "https://www.legislation.gov.uk/eudn/2016/1250/annex/I/annex/2",
    "retrieved_at": "2026-11-01T15:13:53.293736+00:00"
  },
  "licence": "Open Government Licence v3.0",
  "licence_url": "https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/",
  "attribution": "Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives."
}