CONTRACTUAL REGULATION OF CYBER RISKS ININTERNATIONAL COMMERCIAL ARBITRATION: CIVIL LAWAPPROACHES AND MODEL PROVISIONS

Abstract

This article examines the contractual mechanisms available under civil law traditions for regulating cyber risks in international commercial arbitration. As global commerce becomes increasingly dependent on digital infrastructure, parties to international contracts must contend with cyber threats that existing legal frameworks were not designed to address. The article analyses how civil law jurisdictions approach the allocation of cyber risk through contract, focusing on three principal instruments: cybersecurity warranty clauses, indemnification and limitation-of-liability provisions, and force majeure clauses invoked in response to ransomware and other disruptive cyber events. Drawing on the laws of major civil law jurisdictions, including France, Germany, the Netherlands, and Uzbekistan, as well as leading arbitral rules and soft-law instruments, the article proposes a set of model contractual provisions suitable for use in international commercial agreements subject to arbitration. The article argues that civil law doctrines of good faith, proportionality, and the duty to cooperate provide a coherent foundation for the contractual regulation of cyber risks and offer significant advantages over ad hoc dispute resolution in state courts