Attorney-Client Privilege & International Arbitration
Cardozo Journal of Conflict Resolution, 2019
53 Pages Posted: 8 Jun 2019
Date Written: May 17, 2019
This article attempts to offer a new perspective to the existing debate concerning the applicable standard of attorney-client privilege in international commercial and investment arbitration. This article starts by analyzing the main convergences and divergences in the concept of attorney-client privilege across four national jurisdictions. In this regard, this article sheds light upon the divergence of opinions between international arbitration scholars in the literature and how international arbitration operates in practice. For instance, the standard of the “most-protective law,” which most arbitration scholars vouch should be the right answer, is not actually the most featured standard in the published arbitral procedural decisions included in this survey (featured only three times out of forty-four published arbitral procedural decisions). Finally, the author acknowledges how the IBA Rules were successful in establishing an accepted norm of document production which most international arbitration practitioners adopt. Therefore, the main purpose of this article is in fact analyzing how far the relationship and interaction between attorney-client privilege and document production should play a role in shaping up an adequate standard of attorney-client privilege; a standard that can emerge as a best practice in international arbitration.
Keywords: Attorney-Client Privilege, International Arbitration, IBA Rules on Taking of Evidence, Empirical Analysis
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