Originally from The American Review of International Arbitration

PREVIEW

INTRODUCTION

Privilege issues frequently arise during the document production process in international arbitration. Those privilege issues can entail complicated choice-of-law questions concerning the law governing the existence and scope of those legal privileges, which have been the subject of substantial, intellectually stimulating scholarship. Much less attention, however, has been paid to the more pedestrian procedural issues of how claims of legal privilege are actually asserted by parties, and resolved by arbitrators, in practice in international arbitration. For parties, those procedural privilege issues can have significant consequences: the use of privilege logs, third-party review of allegedly privileged documents, and other privilege procedures can add considerable expense to the arbitral proceedings. The risk of disclosure of privileged information to arbitrators (or others) can also affect the substantive outcome of the case and/or compromise the integrity of the proceedings. For arbitrators, privilege procedures can raise equally problematic issues: whether and how arbitrators should raise the issue of legal privileges with the parties without thereby inviting privilege skirmishes among the parties that might otherwise not have arisen, and whether and how arbitrators should address party assertions of privilege without actually viewing the allegedly privileged materials and thereby potentially being tainted by the information they disclose. Yet few international arbitration rules or guidelines exist and little has been published, to assist parties and arbitrators in addressing these procedural privilege issues which typically are addressed in practice only behind confidential international arbitration closed doors.

Fortunately, the Committee on International Commercial Disputes of the New York City Bar Association (the “ICDC” or “Committee”) has recently issued an October 2023 Report on “Procedures for Asserting and Evaluating Privilege Claims in International Arbitration” (the “Report”) which sheds much-needed light on these “twilight” procedural privilege issues. (The ICDC has kindly given the American Review of International Arbitration the honor of republishing its Report in this Volume for the benefit of our readership.) The ICDC is well-qualified to address these procedural privilege issues, as the Committee is comprised of leading New York City-based practitioners, arbitrators, academics, and judges with extensive practical experience in international arbitration. The Report itself reflects the substantial practical experience of the Committee’s members by shedding light on the procedures that are actually used in practice to address and resolve privilege issues in international arbitration, and sharing some recommendations as to best procedural practices with respect to privileges.