Originally from The American Review of International Arbitration (ARIA)

Reprinted from: a Report of the International Disputes Committee of the New York City Bar Association

PREVIEW

Privilege claims often arise in international arbitration, particularly in document production.  While much has been written on the choice of law governing privilege, the procedures parties should use to assert claims of privilege, and tribunals may use in evaluating those claims, have received little attention. Should tribunals call for or expect that privilege claims be set forth on a document-by-document basis (often called “privilege logs”) or more categorically? Should tribunals examine in camera documents that are claimed to be privileged where the privilege is challenged? Should tribunals appoint a tribunal expert or consultant to make recommendations, or should the parties appoint a separate privilege arbitrator to rule on disputed privilege claims? 

This Report seeks to fill the gap in the available literature on these and related questions.  It attempts to present the range of alternatives available in asserting and evaluating privilege claims and to identify best practices. The Report also offers a brief overview of considerations and approaches to choosing the law that governs the substance of the privilege claim. Depending on the applicable law, there may be a number of privileges to which these procedures may apply—principally the attorney-client privilege, the litigation privilege or work product doctrine, and the settlement privilege. Other privileges may also be asserted (such as, in some jurisdictions, state-secret privilege, privilege over communications with accountants, and privileges over marital or familial communications). Privilege issues arise most frequently in arbitrations involving one or more parties from common law jurisdictions, because of the tradition of compelled production of documents in those countries’ litigation practices, but such issues can arise in cases involving civil law parties as well.

The focus of this Report is international commercial and investor-state arbitration. We have not attempted to address procedures applicable to domestic arbitration in the United States or elsewhere in which the expectations of the parties and counsel may be more influenced by practice in domestic courts.

There are relatively few publicly available sources on current arbitral practice with respect to asserting and evaluating privilege claims. Arbitral tribunals typically deal with privilege issues in procedural orders rather than arbitral awards, and few procedural orders are published. We have cited certain publicly available awards and orders to illustrate points made in this Report. We have also drawn on United States domestic sources that have addressed the procedures for asserting and evaluating privilege, not to urge their adoption but simply to illustrate issues that arise and some of the possible benefits and pitfalls in various approaches.