Digital Sovereignty and the Arbitral Frontier: Resolving Multi-Jurisdictional Technology Disputes through Lex Informatica

Abstract

This paper examines the structural incompatibility between digital sovereignty regimes such as the EU’s GDPR, India’s DPDP Act (2023) [1]and China’s Data Security Law (2021)[2] and the delocalized, transnational character of international commercial arbitration in technology disputes. It argues that Lex Informatica, understood not merely as technical code but as a coherent normative framework capable of generating enforceable transnational obligations, offers the most jurisprudentially defensible basis for resolving multi-jurisdictional technology disputes in the arbitral forum. Proceeding through doctrinal synthesis and comparative analysis, the paper builds on Reidenberg’s conception of Lex Informatica [3]and Lessig’s ‘code is law’ thesis[4], examining how arbitral tribunals may invoke code-based norms under Article 28 of the UNCITRAL Model Law as substantive rules governing the merits of a dispute. It further explores the tension between data sovereignty statutes as mandatory overriding norms (lois de police) and party autonomy, with particular attention to decentralized on-chain arbitration (the Kleros protocol) and Indian law’s own readiness for this shift. The paper concludes by proposing a tripartite harmonization framework (the ‘Digital Arbitral Sovereignty Compact’ (DASC) as a roadmap for reconciling state regulatory prerogatives with the demand for a legally certain, technologically sophisticated dispute resolution architecture.

[1] Greenleaf, G. (2024). India’s Digital Personal Data Protection Act 2023: A unique addition to global standards. Computer Law & Security Review, 52, 105912.

[2] Creemers, R. (2022). China’s emerging data protection framework. Journal of Cybersecurity, 8(1), tyac011. https://doi.org/10.1093/cybsec/tyac011

[3] Reidenberg, J. R. (1997). Lex Informatica: The formulation of information policy rules through technology. Texas Law Review, 76(3), 553–593.

[4] Lessig, L. (1999). Code: And other laws of cyberspace. Basic Books.