70th session of UNCITRAL Working Group IV: progress update on data provision contracts
ICLRC experts Nikolay Dmitrik (in-person) and Olga Melnichenko (remotely) participated in the seventieth session of the The United Nations Commission on International Trade Law (UNCITRAL) develops conventions, model laws, guidelines, and other instruments in the field of international trade. Working Group IV on Electronic Commerce, which was held at the United Nations Headquarters in New York from 23 to 27 March 2026.
The Working Group focused on the default rules for data provision contracts, which the Secretariat had prepared in the form of model legislative provisions. During the session, articles 10 through 13 of the model provisions were discussed, as they had not been considered by the Working Group at its previous session in Vienna.
Articles 10–13: Key Developments
Article 10 is devoted to derived data. The Working Group's experts discussed the criteria for data to be considered derivative and, therefore, released from the data provider's interests. They reached a final consensus on two groups of criteria.
First, data is considered derived if it is generated by processing the provided contract data, including by combining it with other data, provided that the new data is sufficiently distinct from the provided contract data in terms of content, considering all relevant circumstances, including the data recipient's investments in generating the data.
Second, data cannot be considered derived if it can be processed to generate essentially identical data to that provided under the contract, including through reverse engineering, or if it can substitute the provided data.
Though Article 11 is devoted to the common obligations of the data provider and recipient, the experts focused their discussions on a very specific obligation: notification of a data breach. To avoid an unreasonable burden on the parties, it was agreed that only data breaches violating the confidentiality of the data would be reported, and only in cases where confidentiality obligations are imposed on the data recipient.
Issues of non-performance (Article 12) became the main focus of this session as the Working Group tried to define a list of remedies or, at least, an approach to creating such a list. The crux of the discussion was that data is an intangible, non-rivalrous asset; thus, there are no functionally equivalent remedies to those of traditional contract law, such as restitution, in case of non-performance.
Specific attention was given to the issue of erasure, including with regard to derived data. Another issue discussed was repairing data due to nonconformity.
The Working Group began discussing the new Article 13, which is devoted to the so-called passive mode of provision. After discussing possible criteria for defining passive mode of provision, the Working Group encountered an obstacle.
On the one hand, if the data in passive mode is not the main subject of the contract, then it can only be considered an auxiliary element of the service provision contract. Therefore, passive data provision is not actually a data provision contract and should be excluded from the scope of the legal instrument under discussion.
On the other hand, passive data provision usually occurs with connected devices where remuneration is not monetary but rather an additional volume of services or products available on the device (e.g., remote monitoring and updates).
Though no consensus was reached regarding the approach to passive data provision, most experts agree that Article 13 should be eliminated and the focus should be shifted to defining the legal consequences of situations in which the means of accessing data are not provided by the data provider in Article 6. The main legal consequence of such a situation is the inapplicability of certain articles, specifically those dealing with the conformity of the data.
Side Events and Next Steps
Three side events were held during the session to brief the delegates on the ongoing work. The first event focused on online platforms and presented the results of several events held after the past session of the Working Group, including the February colloquium. The second, organized by representatives of the European Union, shared the experiences of experts who participated in drafting model contractual terms under the EU Data Act. The third event focused on progress in end-to-end digital trade and the prospects for a consolidated act.
The results of these projects will be presented to the Commission on E-Commerce Day, 7 July.
The Working Group will continue discussing the default rules for data provisions at its next session in October.
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In 2008, Olga graduated from St Petersburg State University (bachelor’s degree).
In 2010, she received the Master’s degree from St Petersburg State University (Civil, Family, International Private Law).
From 2008 till 2020, she worked in the Presidential Domestic Policy Directorate of the Presidential Executive Office.
2013 to present — Senior Lecturer of the Department of Civil Law and Procedure of the Higher School of Economics Saint Petersburg School of Law.
Since July 2020, she has started working in the International and Comparative Law Research Center. Olga coordinates the private law analysis of drafts of legal acts and international instruments developed by the United Nations Commission on International Trade Law and the International Institute for the Unification of Private Law. She participates in events on the topics of the Center's work (private international law, contract law, digitalization of trade, experimental legal regulation, etc.).
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PhD in Law, expert in the field of legal regulation of the digital environment, author of the books “History and Theory of Privacy”, “Legal Informatics” and more than 40 scientific papers in the field of IT regulation. Nikolay heads the office of the Regional Privacy Professionals Association in Russia.