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Document Production and Privilege in International Arbitration—Contrasting Views and Practical Approach

Author: Laurent HIRSCH et Peter ROSHER

Type: Article

ref: 1201765-77

N0:1 of 2017

Pages: 65-77

In order to encourage open exchanges, the discussion was held under the rule of non-attribution of information/sources (the Chatham House Rule). As an introduction, each participant was invited to share their experience and their vision of privilege in international arbitration. From these introductory remarks, it is clear that the theme emphasised the conflict of legal cultures that can exist between practitioners of civil law and of common law, for example with regard to the protection afforded to in-house counsel in Anglo-Saxon legal systems. Some participants were in favour of the creation of common substantive rules whilst others put forward the need to develop "best practices" with clients, so as to arm and best protect privilege/professional secrecy in the event that a dispute arises. It emerged from the discussions that the current situation is not satisfactory, especially with regard to the lack of predictability that arises notably from the absence of procedural rules on privilege in international arbitration rules.