Opening the Black Box of Data’s Relationship with International Investment Law

Abstract With increased attention to digital assets’ relevance to international investment law, data as the fundamental asset of the digital economy requires an in-depth exploration. This article shows that the most adequate approach is to disaggregate the notion of data instead of generalising or dichotomic conclusions about whether data falls within or outside the scope of protected investments. To do so, it shows the need to differentiate beyond binary distinctions such as personal/non-personal or raw/processed data. Such disaggregation and differentiation lead to two discussions. First, the relationship between data as an investor’s asset and its commodification as property under domestic law can exceptionally entail a fundamental challenge for, notably, personal data’s status as investor property. Second, the type of data, its articulation with connected notions such as information, knowledge and wisdom, and the establishment of a territorial link, all raise crucial questions for the assessment of whether data is an asset protected as an investment. The conclusion is that it might be less necessary to adapt international investment law to more clearly include data and other digital assets as suggested by calls for such adaptation, whose implications might also be questionable.