Privilege and document production in International Arbitration: how do arbitrators deal with different legal systems’ approaches?

Abstract

ABSTRACT: The nature of international arbitration is such that parties and their counsel often come from various nationalities with different legal backgrounds. Such diversity is perhaps nowhere starker than in the context of privilege – the protection from discovery and disclosure that is typically afforded to communications between business management and the respective in-house counsel or outside counsel while soliciting legal advice. When parties in an international arbitration have different understandings of privilege, disputes often arise when tribunals are dealing with requests for production of documents that may be considered “privileged” under certain regimes, but not others. Questions that frequently emerge are (i) how should the arbitrators proceed? (ii) which substantive and procedural laws should govern the dispute on privilege? (iii) and, therefore, which type of communications should the arbitrators protect and which documents should be produced? This article focuses on the possible routes arbitrators may follow in the presence of different legal systems’ approaches to privilege when it comes to document production in international arbitration. First, it discusses the similarities and differences between various privilege regimes in North and South America, Europe, Australia, and Asia. Second, it provides an overview of the principles frequently drawn upon by arbitrators when selecting the applicable privilege law. Third, it sets out practical tips and potential approaches concerning the choice of applicable privilege law when parties come from different privilege regimes. Finally, a few concluding remarks.