Seminar on Privilege in International Arbitration

About the Programme

Most jurisdictions recognise some form of legal privilege in litigation, with varying rules. However, when parties and arbitrators in an international arbitration come from different jurisdictions, disagreements often arise as to what communications or documents are privileged.

At present, tribunals and counsel can find little or no guidance in the lex arbitri or the institutional rules on how to resolve issues on privilege. For instance, the UNCITRAL Model Law on International Commercial Arbitration simply provides that in the absence of parties’ agreement, the tribunal may determine the admissibility of any evidence in such manner as it considers appropriate, subject to the overriding principle of equal treatment. Similarly, the SIAC Rules (6th edition, 2016) provide that the tribunal shall determine the admissibility of evidence and is not required to apply the rules of evidence of any applicable law in making such determination. It is also rare for parties to expressly state in their arbitration agreements which privilege rules will apply.

In this session, Mr Francis Xavier, SC and Dr Christopher Boog will discuss the various approaches in resolving privilege issues in international arbitration and share their perspectives from the common law and civil law traditions, respectively. Ms. Asya Jamaluddin will then moderate a panel discussion with our distinguished speakers to consider recent developments in this area and offer potential solutions.