International commercial arbitration has its own unique set of problems and this is nowhere more true than in relation to the legal professional privilege. International arbitration will often involve parties, witnesses, and documents from potentially a number of different countries, each having its own system of law. The same dispute may feature in related proceedings before the courts in a number of countries or tribunals with seats in different countries. This can give rise to complex problems as to the admissibility of evidence—on a jurisdiction-by-jurisdiction basis—materials may be susceptible to a claim to privilege in some countries but not in others. It is, therefore, critical to be aware of which communications will be protected by privilege.
It is an established principle of public policy in many jurisdictions that for the effective administration of justice that a client must feel able to speak and discuss his case openly and frankly with his lawyer. In consequence, most legal systems contain rules that protect from disclosure to third parties evidence arising out of the lawyer-client relationship although the extent and application of privilege laws vary significantly.
A. Introduction to Privilege
Legal professional privilege (an English phrase; attorney-client privilege and the work-product doctrine in the U.S.; solicitor-client privilege in Canada and client legal privilege in Australia) is a rule that entitles a party, during the course of legal proceedings, to withhold from its opponent and from the court or tribunal, evidence in whatever form, that is within the scope of the privilege.