As companies are increasingly faced with this question, the International Chamber of Commerce is polling privacy experts around the world to determine whether binding corporate rules, also known as “codes of conduct”, could provide an effective, legally-binding solution to this problem.
The ICC questionnaire on binding corporate rules for international data transfer – the first research into the “legally binding nature” of such rules – examines how the rules are currently being used, and how they can offer sufficient protection to satisfy data protection authorities worldwide.
At present, a multinational company often cannot use contractual arrangements to make cross-border internal data transfers because it cannot contract with itself. But, if its own internal rules are recognized as legally binding, it could ensure personal data of clients and employees is treated correctly wherever it is sent in the company.
Christopher Kuner, chair of the ICC Task Force on the Protection of Personal Data, and a partner at the law firm Hunton & Williams, Brussels said: “Businesses and regulators are currently showing considerable interest in the use of binding corporate rules to address the safe movement of personal data cross border. As the world’s leading business organization, the ICC needs to assist by providing guidance in this area.”
As the use of binding corporate rules in the area of data protection is still new, there are questions about how it can best be done.
Robert Bond, chair of the ICC Binding Corporate Rules Working Group and a partner at the London office of international law firm Faegre & Benson LLP, said: “I hope that the results of responses to the questionnaire will enable ICC to produce suitable guidance on the key requirements for, and the enforceability of, binding corporate rules.”
The questionnaire is being circulated widely to in-house legal counsel and lawyers dealing with personal data transfers around the world.
The responses will be used to further business and policymakers’ knowledge and understanding of this emerging tool. ICC will make the analysis of responses publicly available on its website in August 2004.