Principles for a Data Economy (with the American Law Institute, ALI)

Quick Facts

Project Type: Instrument
Procedure: Regular
Adopted: CD 2018/2 (On Projects)
Project Period: February 2018–September 2021


The law governing trades in commerce has historically focused on assets, and on trade in items, that are either real property, or goods, or rights (including shares, contract rights, intellectual property rights, licenses, etc). With the emergence of the data economy, however, tradeable items often cannot readily be classified as goods or rights, and they are arguably not services. They are often simply ‘data’, which may be considered as any piece of information recorded in any form or medium.

Both in the US and in Europe, the data economy is beginning to trouble stakeholders, such as consumers, data-driven industries, and start-ups, because there is uncertainty as to the applicable legal rules and doctrines. Concerns range from manifest uncertainty of the law, potentially inhibiting innovation and growth, to a loss of control by governments, legislatures and judiciaries, to serious issues of consumer protection and fundamental rights. More fundamentally, there is already uncertainty about what rights parties ‘own’ and can trade in, eg, who ‘owns’ the data generated by an activity such as driving a connected car, what are the attributes of that data and rights related to it, and who might have to pay compensation to whom for exploiting the data’s economic potential. This uncertainty undermines the predictability necessary for transactions in data and has resulted in lawmakers and the courts grappling with these issues.


This project, conducted as a joint project of the ELI and the American Law Institute (ALI), will study, identify, and collate the existing and potential legal rules applicable to transactions in data as an asset and as a tradeable item and assess the ‘fit’ of those rules with these transactions.

The project aims to produce a set of transnational Principles that can facilitate the drafting of model agreements or provisions to be used on a voluntary basis by parties in the data economy. They can also be used as a source for inspiration and guidance for courts and legislators worldwide. Because data does not have a ‘location,’ the goal would be to have a common set of Principles that would apply wherever the parties happen to be.


While the exact issues to be addressed by the Principles for a Data Economy (and the order in which they are addressed) would need to be defined after more preparatory work has been conducted. It is to be expected that the Principles could, by way of example, include the following parts: (a) General Provisions; (b) Entitlements with Regard to Data; (c) Lawfulness of Control and Processing; (d) Transactions in Data; (e) Security Interests in Data; and (f) User-Generated Data.

From October 2016 to February 2018 a Feasibility Study for the project was carried out, resulting, inter alia, in a 'Draft Framework for Discussion' prepared by Christiane Wendehorst, Neil Cohen and Steven O Weise and presented at the ELI Annual Conference 2017. Following the New York meeting on 15—16 February 2018, the document has been totally rewritten and is in the course of being further amended. However, a draft version can be found here.



Project Reporters

  • Christiane Wendehorst
  • Neil Cohen

Project Co-Chairs

  • Lord Thomas of Cwmgiedd
  • Steven O Weise

Further Project Team Members

  • Bénédicte Fauvarque-Cosson
  • Radim Polčák
  • Sjef van Erp
  • Friedrich Graf von Westphalen

The ELI is particularly grateful to the Fritz Thyssen Foundation for their financial support.