Document Type

Article

Publication Date

January 2019

Volume

51

Abstract

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the divide by seeking to provide clarity about how parties can identify applicable laws to order their lives and to ensure that the attorney-client relationship functions effectively.The Essay considers alternative straightforward conflicts approach about how to provide a rule of decision for privilege issues, namely in parties’ choice either by express agreement or implied agreement from institutional rules, offering an empirical classification of over 75 institutions to explore the rules' treatment of privilege. Next, it analyzes various national arbitration laws to explore how they may either provide guidance of conflicts-of-law rules or other rules of decisions to resolve privilege issues in international arbitration. In then considers the International Bar Association (IBA) Rules on evidence, as the most precise exploration and the only soft-law instrument offering tribunals and parties some guidance about the resolution of privilege disputes. It then moves to explore the publicly available case law — both in investment treaty arbitration (ITA) and international commercial arbitration (ICA) — to identify how tribunals resolve privilege claims using the applicable legal framework. This Essay concludes that, whenever possible, parties should identify ex ante the rules applicable to legal privilege, or at a minimum, provide more express legal rules to guide tribunals about the conflicts of law methodology they must employ to identify the applicable law. The ultimate objective should be to enable, with some degree of certainty, identification of the law applicable to one of the most fundamental legal relationships, both to enable parties to conduct their professional relationship in accordance with the applicable legal duties and to aid tribunals in carrying out their mandate in isolating the applicable law in a rational, predictable, and legitimate manner. In the absence of party agreement, this Essay proposes that countries — either in national law or treaties — identify self-determined guidelines or adopt pre-existing guidelines, such as those in the IBA Rules or rules of the International Centre for Dispute Resolution, to guide tribunals and to reduce unpredictability by providing a meaningful opportunity to capture tribunal discretion and prevent party manipulation. Alternatively, to fill the void from lack of agreement or hard law guidance from states, this Essay advocates for tribunals adopting an approach similar to that championed by the conflict of laws luminary, Judge Robert Leflar. Using a Leflar-like approach that rejects an artificial dichotomy between substance and procedure and offers clear, pre-articulated “choice influencing considerations” that permits tribunals to identify the applicable law of privilege in an honest and rule-of-law based manner enables stakeholders to advocate in a functional, effective, coherent, predictable, and legitimate manner. At a minimum, shifting the question from “what law applies” to the specific query of “what is the process for selecting the applicable law” injects clarity and enhanced predictability into a fundamental question of dispute resolution; and the shift in focus is preferable to the current void.

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