Originally from European International Arbitration Review

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I. Introduction

International arbitration is a dispute resolution mechanism that transcends domestic legal systems. Despite doctrinal uncertainty as to what renders an arbitration international, there is consensus that international arbitration reaches beyond borders. By necessity, this places a burden on international arbitrators who must determine the law applicable to such disputes. 

One area of law in which these choice of law questions can be particularly intricate is the law of privilege. 

At a very abstract level, a privilege constitutes a right to withhold certain communications or information in the interest of a legally acknowledged cause.  Among the different forms of privilege, the most prominent is legal privilege, which protects certain communications or information between legal advisors and their clients.

This paper explores the determination of the law applicable to legal privilege in international commercial arbitration. Part II provides a concise survey on the diverging approaches towards legal privilege across jurisdictions. Part III examines the applicable choice of law rules for determining legal privilege. It is argued that, absent party agreement, arbitral tribunals enjoy discretion to determine the law applicable to legal privilege; a discretion which nevertheless finds limits in mandatory laws. Part IV discusses how arbitral tribunals should exercise this discretion in individual cases. The party’s seat is identified as the most influential connecting factor. Part V presents limits to the choice of law which derive from mandatory laws. Special attention is placed on the most favorable law approach, which requires applying the more favorable privilege law to both parties to the extent this is necessary to ensure the equality of arms between the parties.