Originally from Handbook on International Commercial Arbitration

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International commercial arbitration has its own unique set of problems and this is nowhere more true than in relation to the legal advice 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 arbitral tribunals with seats in different countries. This can give rise to complex problems as to the admissibility of evidence—on a jurisdictionby-jurisdiction basis—of materials that 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.

A. Introduction to Privilege

Legal professional privilege (or attorney-client privilege and the work-product doctrine in the U.S.) is a rule that entitles a party, during the course of legal proceedings, to withhold from its opponent and from the court, evidence in whatever form, that is within the scope of the privilege.

Legal professional privilege itself is divided into two branches—“legal advice privilege” (broadly equivalent to attorney-client privilege) and “litigation privilege” (broadly equivalent to work-product doctrine). Broadly, the legal advice privilege covers confidential communications between a lawyer and his client made for the purpose of giving or receiving legal advice. On the other hand, the litigation privilege covers confidential communications made between a lawyer and a client or a third party for the dominant purpose (or perhaps more simply “made in the relevant legal context”) of being used in connection with actual or pending litigation. It can readily be seen that advice sought in connection with litigation may be covered by both advice privilege and litigation privilege.