Originally from: Stockholm International Arbitration Review

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THE APPLICATION AND SCOPE OF ATTORNEY-CLIENT PRIVILEGE IN INTERNATIONAL ARBITRATION

Peter Rosher

1. Introduction

Obtaining legal advice in day-to-day business transactions has become second nature for corporate management operating in today’s global village. Increasingly, in-house legal departments are called upon to advise, or obtain advice from external counsel, on relevant legal issues before definitive corporate decisions are taken or implemented. Notes and memoranda are regularly produced, and considered by senior management. These legal documents often bear a variety of different legends: "Privileged & Confidential", "Attorney-Client Privilege", "Attorney Work Product", to mention but a few. The goal is of course to cloak sensitive documents with attorney-client privilege, or professional secrecy, but how effective is this?

Attorney-client privilege exists in most jurisdictions.1 Its application and scope vary significantly, however, from one legal system to another. Lawyers practising in the international commercial arena (and their clients) encounter striking contradictions which result from these divergences. Clients can be very unpleasantly surprised to discover that, contrary to their legitimate expectations, legal advice from in-house counsel in, for example, the Paris office of a multinational company does not benefit from the same attorney-client protection afforded to his or her counterpart in that company’s New York or London offices. In today’s international business market, where internal legal documents are ever increasingly distributed throughout a global corporate structure operating in different jurisdictions (and more often than not electronically), such risks are multiplied.