1. Introduction

Fact-finding in international arbitration is subject to rather flexible evidentiary rules. In general, arbitral tribunals decide upon evidentiary issues on a case-by-case basis following the general guidelines provided by institutional rules.

Arbitral institutions have developed rules and criteria that have increasingly led to a certain degree of standardization. The principles of due process and equality of the parties, the duty to render a valid and enforceable award avoiding vacatur before the courts of the arbitration seat and the need to pursue the truth behind the parties' conflicting allegations constitute three pillars upon which arbitrators generally exercise their judgment.

Supported by these and other general principles, arbitration practice has allowed flexibility and predictability to coexist in a myriad of areas. However, issues that were not so relevant a few years ago have increasingly become significant, thus calling for harmonization efforts in the field. Disclosure of confidential and privileged documents1 is certainly one of them. 2

There are no standardized rules on privileges in international arbitration. 3 As objections towards documentary disclosure are increasingly being raised on the basis of privilege claims, the particular issues posed by this matter have become apparent. [Page30:]

As generally explained, few things are more international than international arbitration. Frequently, parties are nationals of different countries, their counsel practises law in different jurisdictions to that of their clients, the transactions or investments at issue are simultaneously executed in one or more countries and members of the tribunal come or have been raised in different legal cultures. 4

This mosaic of cultures and legal regimes raises substantial questions when the time comes to determine how to deal with a privilege claim. The variety of domestic rules on privileges is so significant that disputes on the applicable regime or standards are frequently foreseeable. Faced with such questions, tribunals need to determine whether the party refusing disclosure holds an evidentiary privilege enforceable as such within the international proceedings. At this point, flexibility can seriously affect predictability. 5

2. The underlying roots of privilege-related issues in international arbitration

a. Status of international arbitration rules and practice

Arbitral tribunals exercise considerable discretion on procedural matters. 6

The ICC Arbitration Rules provide that proceedings "shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration", 7 subject to the limitation, that "in all cases, the Arbitral Tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case." 8 Within these boundaries, the tribunal is empowered to establish the facts of the case "by all appropriate means". 9 In this same path, the UNCITRAL Arbitration Rules set forth that "the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case." 10

The tribunal's discretion to conduct the proceedings encompasses evidentiary matters. Arbitration rules grant considerable flexibility to tribunals to decide on admissibility questions as well as on the relevance and weight of the evidence produced. It further vests arbitration panels with the power to call for the production of specific evidence or documents. For instance, the UNCITRAL Arbitration Rules provide in this regard that: [Page31:]

"Article 24

(…)

2. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his statement of claim or statement of defence.

3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.

(…)

Article 25

(…)

6. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered." 11

The Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce follow similar criteria by providing that "[t]he admissibility, relevance, materiality and weight of evidence shall be for the Arbitral Tribunal to determine" and that "[a]t the request of a party, the Arbitral Tribunal may order a party to produce any documents or other evidence which may be relevant to the outcome of the case". 12 The ICC Rules of Arbitration, the ICSID Arbitration Rules and the LCIA Arbitration Rules contain similar provisions. 13

International arbitration rules remain, in most cases, silent on privilege issues. 14

A general consensus exists on the fact that entering into an arbitration agreement does not imply a waiver of privilege protection. 15 It is broadly assumed that conflicts regarding document production in the framework of a privilege claim constitute admissibility questions and fall within the broad decision powers entrusted to arbitral tribunals. [Page32:]

Although unusual, some rules explicitly refer to privileges or other legal impediments. 16

The ICDR International Arbitration Rules, after establishing that the tribunal shall determine the admissibility, relevance, materiality and weight of evidence, state that:

"The tribunal shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client." 17

Similarly, the IBA Rules on the Taking of Evidence in International Commercial Arbitration (the "IBA Rules") set forth that:

"The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any document, statement, oral testimony or inspection for any of the following reasons: (…) (b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable (…)."18

The CPR Rules for Non-Administered Arbitration establish that:

"(…) The Tribunal is not required to apply the rules of evidence used in judicial proceedings, provided, however, that the Tribunal shall apply the lawyer-client privilege and the work product immunity. The Tribunal shall determine the applicability of any privilege or immunity and the admissibility, relevance, materiality and weight of the evidence offered." 19

Even those sets of rules that explicitly acknowledge the tribunals' power to exclude evidence considered privileged provide no indication on the criteria that arbitration panels must follow to make their findings. 20 The recent Guidelines for Arbitrators Concerning Exchanges of Information issued by the AAA has sought to fill such lacunae within the ICDR International Arbitration Rules. 21

In the framework of international proceedings-which often involve parties, counsel and documents subject to different law regimes-the lack of uniform provisions opens the door to potential conflicts on the rules of law that should be applied to settle privilege claims raised by parties that refuse disclosure. [Page33:]

b. Privileges in national jurisdictions

The concept of privilege is not uniform under domestic legal regimes. 22 Found in legislation, case law and professional ethics codes, 23 different types of privileges coexist even within countries adhering to the same legal system (i.e. civil law or common law). Professional privileges, including attorney-client privilege, medical privilege, journalist privilege and accountant-client privilege, as well as privilege against self-incrimination, trade secrets, privilege on settlement discussions, family privilege, clergy-penitent privilege and privilege for government information constitute some of the most known privileges found in national jurisdictions, each of them subject to the particulars of each jurisdiction. 24 Among them, the attorney-client privilege, the privilege on settlement discussions and privileges on business, trade and state secrets are the ones most likely to be invoked in international arbitrations. 25

The attorney-client privilege is an excellent example of the wide diversity found in legislation on privileges. 26 In common law jurisdictions, such privilege is regarded as a substantive matter that pertains to the client, not to the professional:

"The privilege is that of the client not the lawyer. The role of the lawyer is crucial to the existence of the privilege, but it is the client who can waive the privilege. The lawyer must protect the privilege unless instructed otherwise." 27

In a different view, civil law countries generally speak of the attorney-client privilege in terms of "professional secret". It is deemed a procedural issue, rather than a substantive one, whose abidance is generally seen both as a legal and ethical obligation pertaining to counsel and as a matter of public policy. 28 Its breach is considered a criminal offence in several jurisdictions. 29

Following from the example above, the treatment provided to in-house counsel also evidence dramatic variations from country to country. 30 In England, privilege extends to in-house counsel "provided that the communication relates to a legal as distinct from an administrative matter". 31 In the leading case Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2), 32 the English Court of Appeal-through Lord Denning's opinion-took the view that:

"Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department [Page34:] or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer (…) They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges." 33

Subject to the particulars of each regime, the United States, Finland, Belgium, Spain, Germany, Denmark, Portugal, Norway, Greece, South Africa, Argentina, Brazil and Chile-among others-follow similar criteria covering in-house counsel communications as privileged. 34

A different view has been adopted by the European Court of Justice. Since the AM & S Europe Ltd. v. Commission of the European Communities decision rendered in 1982, two conditions must be fulfilled in order to successfully claim a professional privilege: "communications [should be] made for the purposes and in the interests of the client's rights of defence and, on the other hand, they [should] emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment". 35

With respect to the second condition, the ECJ held:

"the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer's role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose. Such a conception reflects the legal traditions common to the member states and is also to be found in legal order of the community (…)".36[Page35:]

In September 2007, the European Court of First Instance addressed the matter in Akzo Nobel Chemicals Ltd. and Akros Chemicals Ltd. v. Commission of the European Communities. 37 Despite the intervention of relevant institutions-such as the International Bar Association and the European Company Lawyers Association-arguing in favour of extending privileges to communications involving in-house counsel, the first instance court found no reasons to depart from the criterion set out by the ECJ in the AM & S Europe Ltd. case. The judgment has been appealed to the ECJ, and its decision is still pending.

According to a recently updated survey conducted by Lex Mundi, a similar position to that of the ECJ prevails in Austria, Bulgaria, the Czech Republic, Estonia, France, Hungary, Luxembourg, Monaco, the Netherlands, Slovakia, Sweden and Switzerland, where attorney-client privilege is only available to outside counsel. 38

A general consensus exists, at least in the Western world, that confidential and privileged information should be protected. This could well be regarded as a principle in international arbitration. 39 However, there is no agreement on its content and scope.

c. Privilege claims scenarios are generally not envisaged in advance

i. Relevance of general, contractually agreed rules

A certain consensus also exists on the fact that the parties' actual will is not to cover privileges within ordinary contractual arrangements on applicable law. 40 This is irrespective of whether the laws on privilege are considered of substantial or procedural nature.

Therefore, the law governing the contractual relationship cannot be reasonably extended to grant-or waive-privileged status to all the parties' documents, much less to those prepared in different jurisdictions and/or quite often for purposes not directly related to the contract at the time they were drafted. Unless there is a strong indication that such was the parties' will, the law of the contract does not seem to bear a strong relation other than to the execution, performance and interpretation of the contract itself. 41 The parties' reasonable expectations when they prepare documents or seek advice from their counsel is generally not to subject them to the regime on privileges under the law applicable to a prospective or even an ongoing contract. 42[Page36:]

As expressed by Mosk and Ginsburg:

"It is unlikely that the parties consider privileges in their choice of substantive law or intend that law to govern privilege claims when the evidence is connected with another jurisdiction. Furthermore, any choice-of-law clause applicable to the arbitration might be set out in general terms, or might be limited to issues related to the transaction-for example, the interpretation or enforcement of a contract. A choice-of-law clause covering contract interpretation probably would not include the law of privileges." 43

Nor could it be assumed that any arrangement on the agreed-upon procedural law could set forth a workable solution to privilege claims. Such kinds of agreements are far from common. The arbitration procedure is generally governed by institutional rules, which-as discussed above-do not offer much guidance on privilege matters. Furthermore, in those exceptional cases in which the parties provide for ad hoc arbitration subject to specifically tailored procedural rules, rules on privilege are often absent or overlooked.

ii. Lack of specifically agreed provisions

It has been suggested that the question of privileges would not be an issue if the parties adequately cover the matter when entering into the arbitration agreement. 44 While not impossible, however, it is hard to imagine such a careful approach in ordinary business operations. 45 Unfortunately, minor relevance is still given to dispute settlement clauses in contracts. Negotiating parties seek business success, not legal disputes. Accordingly, they focus primarily on the deal's core premises and only afterwards on those clauses to which the parties generally do not need to resort during the contract's performance.

Furthermore, even if those matters were addressed within the arbitration clause, it would not be a perfect solution. It has been noted that "[a]ddressing the issue of privilege in the arbitration agreement could be a way of avoiding some surprises but it could also create others because in most cases parties will not have taken the time to consider the full implications of their choices." 46

It is therefore unsurprising that the parties to a contract do not generally determine the law that will specifically govern privilege claims in advance. 47 It is also not surprising that, when the matter actually arises in the course of an arbitration proceeding, the dispute on the issue becomes highly controversial. [Page37:]

Several questions are then triggered. Should it be understood that privileges constitute a procedural matter subject to the law governing the proceedings or a substantial matter subject to the law applicable to the merits? Why should they not be seen as sharing a mixed nature? Could it be said in any event that the parties to a contract intended privileges to be ruled by the agreed-upon procedural or substantive law? What is the role of the law of the forum? What is the relevance of the jurisdiction in which the document was produced or stored or the one to which it was delivered? In the case of attorney-client privilege, should the jurisdiction in which counsel practices law have any impact?

Several examples have been provided of troublesome scenarios in which these kinds of queries could become particularly relevant, 48 even to the point of being decisive for the outcome of the case. Yanos provides an example of some of the conflicting issues that could arise in the context of international arbitration:

"A French company and an English company are involved in an ICC arbitration in Paris concerning the English company's shares in the Argentine subsidiary of the French company. The Contract is governed by New York law. The tribunal orders limited document discovery concerning the reasons the Argentine company launched a particular product at a particular time. The English company demands production of documents reflecting the advice from the French general counsel and the French and Argentine outside counsel to the president of the Argentine company on the decision.

With respect to the advice from the French general counsel, the English company argues that the general counsel's advice is not privileged under French law. The Argentine company counters that an order applying French law to this question and compelling it to produce the French general counsel's documents would violate article 15.2 of the ICC rules (…) since, in a previous dispute, the tribunal had already agreed to apply English law to the question of privilege for English company's general counsel and, therefore, held those documents to be privileged.

With respect to the advice from French and Argentine outside counsel, the English company argued that advice received from outside counsel is not privileged, vis-à-vis a shareholder, under New York law. The French company countered that the notion that shareholders are entitled to disregard the privilege in disputes with the companies they [Page38:] own is a procedural rule and, therefore, could not have been imported with the choice of law clause in the contract. Instead, it argued, French law (the procedural law of the forum) governs and the documents are privileged. The English company then demanded, in the alternative, all internal correspondence describing the advice of outside counsel since it was not privileged under French or Argentine law.

At the same time, the English company refuses to produce, on grounds of privilege, critical documents reflecting the notes of its own general counsel (actually a New York lawyer), taken during a meeting in the French company. Even though the notes are the only contemporaneous record of what was said at the meeting. The French company argues that, under English law, notes taken at a meeting between multiple parties are not privileged (…). The English company argues that the notes, taken by the New York lawyer, were subject to the New York rule and, therefore, were privileged." 49

Notwithstanding its complexity, these kinds of scenarios are quite frequent in international arbitration. 50 In these cases, tribunals generally take their decisions following one of the many alternatives available. However, depending on the criterion ultimately adopted, parties might feel that they have been treated unfairly, for instance, if they are forced to disclose documents that at the time they were prepared were reasonably considered privileged in their jurisdictions. In addition, the potential overlook of national regulations on privilege-closely related to policy considerations-could eventually jeopardize the award's enforceability in some jurisdictions or lead to its annulment before the courts of the arbitration seat. From a different perspective, parties whose requests for document production were denied based on a privilege-based objection could claim that they have been divested of essential evidence to prove their case.

Under this complex framework, different alternatives have been proposed in order to reach solutions that could best serve the regular flow of arbitration, free from potential disrupting events. [Page39:]

3. Towards a suitable solution: different alternatives proposed

a. The choice-of-law method

Faced with a privilege claim and absent a particular arrangement between the parties on the matter, the tribunal will generally be tempted to settle the issue through the governing procedural or substantive law. This could be labelled as a traditional approach51 and has the advantage of providing a uniform way out: one law rules all privilege claims.

The choice between substantive or procedural law strongly depends on the nature attributed to privilege rules. As a general approach-although not always proven accurate-arbitrators of common law origin would be more inclined to treat the matter as a substantial question, while civil law arbitrators would take the opposite approach.

The current trend in international arbitration is to grant tribunals broad powers to establish the rules governing the proceedings, whether or not with reference to any national law, provided that public policy regulations in force at the place of the arbitration are observed. Therefore, in cases where privileges are considered procedural in nature, arbitrators will be able, at least in principle, to exercise considerable discretion in selecting the most appropriate rules or standards to deal with the matter. 52

Notwithstanding this, two practical issues must be duly noted. First, despite modern trends, application of the lex loci arbitri to procedural questions still constitutes a widely accepted practice. Second, rules on privilege are closely related to public policy matters in many jurisdictions. 53 Such elements are evidence of the relevance that due consideration of the laws in place at the arbitration seat normally assumes in order to avoid jeopardizing the prospect award.

On the other hand, if privileges are seen as a substantive law issue, any related claim will be settled according to the proper law of the contract, whether agreed by the parties or determined by the tribunal. 54

In either case, shortcomings would be similar to the ones presented above. It appears highly debatable that the parties' agreement in this respect was actually intended to embrace questions of privilege. By the same token, the proper law of the contract as determined by the tribunal, the lex arbitri or any other procedural rules governing the arbitration will often bear no connection with the evidence claimed as privileged. 55[Page40:]

Following the above-mentioned example provided by Yanos, at the time the Argentine outside counsel provided his advice to the president of the Argentine company on the decision to launch a particular product, the potential privileged nature of such advice could not have been reasonably regarded as being subject either to New York law (the law of the contract) or to French law (the lex arbitri). Rather, it seems reasonable to conclude that any expectation of its privileged nature would have been based upon Argentine law.

This had led many scholars to endorse the "most closely connected" rule as the correct approach towards privilege claims. 56 According to this view, the tribunal should apply the law that bears the closest connection to the evidence at issue. 57 Theoretically, the tribunal could resort to a different law to decide upon the admissibility of each piece of evidence claimed as privileged.

This approach could, of course, open up a wide variety of possibilities. 58 The tribunal would have to decide whether the law of the party's home state is more closely connected than the law of the place where the document was delivered or elaborated. In addition, depending on the type of evidence, it might have to decide between the law of the client's domicile and the rules of the jurisdiction in which the attorney practices law or between the domicile of the witness and the party's home state.

While this approach may overcome the lack of connection of the proper law of the contract and procedural law with privilege issues relating to evidence touching upon different jurisdictions, it does not seem to foster predictability regarding the tribunal's selection of the applicable law.

As noted by Rubinstein and Guerrina:

"Whatever the choice, the outcome is unlikely to be predictable at the time that the parties sign their contract. Weighing various factors and interests is largely a subjective exercise; it may be difficult to predict how any particular arbitral tribunal will weigh factors in a particular context. One or both of the parties may therefore end up with defeated expectations if unfamiliar privilege rules are applied, particularly if the selected rules accord a lower level of protection (…)".59

This discouraging prospect of defeated expectations is not likely to arise in those cases in which all the potential applicable sets of rules provide for the same solution. 60 Even in this case, however, potential coincidences that could occur in practice will generally not be foreseeable in advance. [Page41:]

In addition, the application of multiple laws subject to the outcome of the "most closely connected" test could result in unfair procedural treatments. Evidence requested from one party could be treated as privileged under its most closely connected law while the same type of evidence held by the other party could be regarded as non-privileged under its governing law. 61 For instance, a US party could request disclosure of in-house counsel's advice provided in France to its French counterparty, which is not considered privileged under French law, and refuse production of advice received from its own US in-house counsel in New York.

In such situations, tribunals could refuse to back such solutions based on the fact that due process of law and equality of the parties could be affected.

b. The most-favoured -rule approach

The most-favoured rule standard seeks to rise above the criticism expressed against the "most closely connected" approach. In order to overcome both the potential unfair treatment and attain predictability, it has been proposed that tribunals should analyze the laws in force in each relevant jurisdiction and apply the one that favours privilege more. 62

The advantages of this system derives from the fact that

"the parties would be confident knowing that they would never be required to produce information that is considered privileged under the law of their own country. As each party (or each counsel) would be protected by the traditional privileges to which it is accustomed, there would be no unfair surprises." 63

This criterion reflects to some extent the practical approach followed by arbitral tribunals. Arbitrators seek to avoid granting different treatment to the parties and protect the award from annulment based on a gross procedural flaw. Therefore, in those cases in which documentary disclosure is denied pursuant to the documents' privileged status, the same treatment is ordinarily granted to the other party's documents irrespective of its non-privileged nature under its most closely connected law.

This position has been adopted in some international conventions. The 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides, concerning letters of request, that: [Page42:]

"In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence-

(a) under the law of the State of execution; or

(b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration." 64

Similarly, the Inter-American Convention on the Taking of Evidence Abroad sets forth that

"A person called to give evidence in the State of destination pursuant to a letter rogatory may refuse to do so when he invokes impediment, exception or duty to refuse to testify:

1. Under the law of the State of destination; or

2. Under the law of the State of origin, if the invoked impediment, exception or duty to refuse has been specified in the letter rogatory or has been confirmed by the requesting authority at the instance of the court of destination." 65

In the recently issued Guidelines for Arbitrators Concerning Exchanges of Information, effective as of May 31, 2008, the ICDR has incorporated the most-favoured rule with regard to privilege matters:

"The tribunal should respect applicable rules of privilege or professional ethics and other legal impediments. When the parties, their counsel or their documents would be subject under applicable law to different rules, the tribunal should to the extent possible apply the same rule to both sides, giving preference to the rule that provides the highest level of protection." 66

From a practical point of view, the application of the IBA Rules when facing a potential situation of unfair treatment related to privilege claims could lead to a similar conclusion. 67[Page43:]

After establishing that the tribunal shall exclude evidence or deny its production based on questions of privilege under the legal or ethical rules determined by the arbitral tribunal to be applicable, 68 the IBA Rules provide that such exclusion or denial could also take place based on "considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling". 69

In fact, the IBA Working Party that drafted the IBA Rules explained this in the following terms:

"Article 9.2(g) is a catch-all provision, intended to assure fairness and equality to all sides in the case. For example, documents that might be considered to be privileged within one national legal system may not be considered to be privileged within another. If this situation were to create an unfairness, the arbitral tribunal may exclude production of the technically non-privileged documents pursuant to this provision. In general, it is hoped that this provision will help ensure that the arbitral tribunal provides the parties with a fair, as well as an effective, hearing." 70

Of course, the most-favoured rule approach has been subject to some criticism. On the one hand, it has been said that it could promote forum shopping, for instance, "by encouraging parties to select counsel from countries with more favorable privilege rules". 71 On the other hand, some have argued that, while privileges safeguard relevant interests, such an approach could impair the tribunal's task to establish the facts of the case, particularly if it leads to the application of broad encompassing rules on privileges. 72

However, absent uniform substantial rules on the matter, this method appears to be the most suitable one. Forum shopping could eventually take place, but parties certainly consider much more relevant factors when selecting counsel-such as skills, expertise, knowledge of the industry affected, reliability and acquaintance with the applicable law-which overall diminishes the risk of such practices taking place.

As to the second criticism, facts need to be established within the framework of applicable rules. If they happen to encompass broad privileges, counsel will need to prove its case through all remaining available means. Fact-finding could be harder under such circumstances, but defeating one party's expectations through the application of rules other than those that were legitimately expected to be applied would constitute a much more imbalanced outcome. [Page44:]

c. The least-favoured rule approach

In contrast to the most-favoured nation rule, this approach provides that the law of the narrower protection is the one that should be applied. While this criterion makes more elements available to the tribunal by leaning towards admission of broader evidence and formally accords equal treatment to the parties, it could severely impair a party's reasonable expectation that it is entitled to broader protection under the most closely connected law. 73

For example, the advice given by an in-house counsel established in New York to the president of a New York based corporation, which would naturally be considered privileged under the state's laws, would suddenly turn out to be unprotected in a dispute with a French counterparty.

In addition, in those civil law jurisdictions in which the privilege pertains to the attorney, who is subject to bar sanctions and even criminal prosecution for breach of privilege, this approach could unreasonably corner counsel and therefore prejudice the party's prospect to prevail in its case. 74 Counsel would thus need to choose between complying with the disclosure order and facing sanctions or disobeying the disclosure order and facing potential adverse inferences drawn by the tribunal. No experienced arbitrator should place counsel in such situation and jeopardize any resulting award.

Furthermore, by applying this criterion, the tribunal could run the risk of overlooking a privilege regarded as a matter of public policy in the country of enforcement-frequently the home jurisdiction of the defeated party-thus affecting the award's enforceability.

d. Balancing the extent of discovery with the privilege's scope

As an alternative to the approaches described above, it has been proposed to match the scope of the privilege to the scope of discovery. 75 According to this view, being that it is impossible to separate the content of privileges from the discovery system in which they are established, allowance of broad discovery should lead to a broad doctrine of privilege. In contrast, if the tribunal favours only limited requests for production of documents, a narrow definition of protected documents should apply.

This proposal acknowledges that jurisdictions with a broad discovery system, such as the United States, also provide a broad doctrine on privileges, while jurisdictions that apply a narrow standard of disclosure do so in [Page45:] conjunction with a more restricted privilege doctrine. Notwithstanding the initial attraction that this approach presents, it does not seem to overcome the main concerns that other suggested solutions such as the least-favoured rule approach have raised.

Under this system, the parties to an arbitration will benefit from the same standard and formal equal treatment. However, a party coming from a common law jurisdiction could see its expectations defeated if the tribunal applies a restrictive view on privileges by only allowing specific requests for documents. It cannot be assumed that at the time the requested document was elaborated under the protection of the broad privilege doctrine in place in its home jurisdiction-perhaps even years prior to the institution of the arbitral proceedings-the party could have been aware that its compulsory production could be ordered by an arbitral tribunal applying a narrow document discovery system.

Furthermore, international arbitration has in general remained elusive to US-style discovery. While it is true that discovery practice has increased as a growing number of US parties, counsel and arbitrators are involved in international arbitration proceedings, it is far from established and has found strong opposition to its development in the field.

Just to mention one of the many concerns expressed, it has been said that widespread application of US-style discovery could erode cost-effectiveness, one of arbitration's core advantages.

In the United States, preproduction privilege review in the litigation context has become a thorny issue. The advent of discovery upon electronically stored information has led to rising costs that have not been mitigated under the Federal Rules on E-Discovery, which entered into force in December 2006. A significant portion of litigation expenses are devoted to this stage. A survey conducted by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System on problems associated with discovery has revealed the opinion that "the discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself." 76 Furthermore, "87 percent agree that electronic discovery, in particular, is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges." 77[Page46:]

Expansive US or UK-style discovery has not yet prevailed in international arbitration. 78 On the contrary, document production in international arbitration has predominantly combined common law and civil law practices79 to the extent of being characterized as "one of the most remarkable examples of a merger between different civil procedure approaches". 80

In fact, e-discovery is currently one of the most controversial issues in international arbitration and has been increasingly addressed by relevant institutions. The recent Protocol for E-Disclosure in Arbitration issued by the Chartered Institute of Arbitrations on October 2, 2008 is an excellent example of this trend. 81

4. The need for further harmonization: balancing competing principles in the field

Flexibility is one of the core advantages of arbitration. Tribunals' discretion to conduct proceedings, rule upon evidence admissibility and assess the relevant facts of the case have long been considered to be some of its most attractive features.

Facing a request for production of documents that are allegedly protected, arbitral tribunals weigh diverse factors prior to rendering a decision. These include the relevance of the documents for the case, the nature of the privilege claimed (i.e. its underlying policy considerations, whether it is generally recognized as such in national jurisdictions and the treatment provided by the law of the arbitration seat), the parties' expectations (i.e. whether their home jurisdictions provide for broad or restrictive disclosure) and the need to observe the principles of due process with respect to both parties to the dispute. If one party urges disclosure of privileged documents held by its counterparty, it should be prepared to produce similar kinds of documents. An arbitral tribunal will not reasonably require production of documents from one side and deny a similar petition towards the other side.

However, flexibility cannot override predictability. 82 The parties should reasonably be able to anticipate the standards of law upon which any privilege claim will be assessed.

Negotiation of international agreements generally entails internal discussions between company officers and involves both in-house and outside counsel. Confidential information such as trade secrets and know-how will ordinarily be involved in those business transactions. [Page47:]

Not knowing in advance whether communications, internal documents prepared in the context of negotiations or pre-existent confidential information will be considered privileged in eventual arbitration proceedings shows how challenging it could become to plan ahead for negotiations. As noted above, many European jurisdictions fail to grant privileged status to in-house counsel communications. Would an English company seek its in-house counsel's advice in a contract negotiation with a French company?

Uncertainty regarding privilege issues will usually also impact on the preparation of the arbitration. As noted in this regard, "if counsel prepares outlines or other documents to assist witnesses in preparing to testify, and such documents are used by witnesses to refresh their recollection, would such documents be discoverable?" 83 The answer is relevant and could heavily influence case preparation.

Furthermore, the lack of a clear understanding of the laws to be applied by the tribunal with respect to privilege claims could also significantly delay arbitration proceedings. Clear rules would avoid such shortcomings and preserve arbitral swiftness. 84

These reasons support the need of harmonization. This could be achieved in various ways. Agreeing on a uniform choice-of-law method (i.e. the most-favoured rule approach) to be applied to all parties to the dispute or establishing a set of guidelines or rules governing privileges in international arbitration seem to be some of the possible alternatives.

Ten years after their adoption, the IBA's Arbitration Committee has established a Rules of Evidence Subcommittee in order to undertake a comprehensive review of the IBA Rules. The treatment of privilege matters is one of the topics on the working agenda. An extensive survey was distributed and completed prior to the IBA's recent Annual Meeting in Buenos Aires. Initial discussions were held there and will continue in Dubai. 85

Even though some principles on privilege matters are widely shared by national legal systems-such as the attorney-client privilege-there is no established transnational standardized rule, except conceivably for the privilege on settlement negotiations. 86 Even if one were to accept that certain privileges could have become general principles of law, even to the point of constituting transnational or international public policy, 87 which seems a far-reaching statement, their content would still be highly undetermined. 88 Absent written rules on privileges at international level, tribunals would need [Page48:] to apply any transnational privilege standard according to their own view and criteria. In such cases, "[t]he potential arbitrariness arising out of the application of different domestic laws is substituted by the uncertainty related to the question whether a tribunal will in fact accept a certain rule as being part of transnational law, how it will formulate the rule and its scope and where it sees its limits". 89

Establishing a set of rules on privileges at this stage seems an extremely difficult task to achieve. Detailed rules could affect flexibility and potentially breach public policy regulations applicable in certain jurisdictions. While most states share a common belief that certain information must be protected from disclosure, further harmonization at national level regarding the scope and nature of such protection seems to be desirable in order to establish specific written standards in international arbitration. With particular reference to the attorney-client privilege, voices of concern have been raised regarding the likelihood of standardization under the prevailing circumstances:

"One has to question if this (development of model principles defining the nature and scope of legal privilege in international arbitration( is really an option as it is difficult to see how such universal standard would be promulgated and enforced. Questions of privilege are different to the sorts of issues that have been dealt with rather effectively through the IBA Rules. With respect to privilege and professional secrecy, ethical and professional conduct and responsibility concerns are an integral part of the discussion (i.e. lawyers are bound to honor the professional ethic codes/rules of the jurisdictions where they are licensed) which makes any kind of harmonization or standardization much more complex and delicate". 90

In the current state of affairs, harmonization in international arbitration seems more likely to be attained through the establishment of a preferred choice-of-law method. In this context, the most-favoured rule approach appears attractive by securing equality of arms among the parties to the dispute and thus reducing the risk of having awards vacated by local courts due to non-observance of its public order laws on privilege or declared unenforceable in one party's home jurisdiction.

As an alternative to this approach, guidance could be sought on the law that could be considered the most closely connected in the most frequent cases of privilege claims. For instance, the law of the domicile of the party could be set as the one governing documents prepared by counsel, inasmuch [Page49:] as its application does not breach any public policy rule in place at the arbitration seat or any legal or ethical obligation held by counsel in the jurisdiction in which it practices law.

Of course, strict application of this approach could lead to unfair treatment of parties whose governing legislation provides for lesser protection than their counterparties' laws. To avoid these situations, this criterion could be supplemented by explicitly setting rules stemming from the principle of equality: (i) a party that requests disclosure of a certain type of document from the other party shall be precluded from raising a privilege claim with respect to a similar category of document of its own; and (ii) a party that successfully invokes a privilege with respect to a certain document shall not request disclosure of the same category of documents from its counterparty.

In this context, the IBA's Arbitration Committee is currently examining the convenience of launching a Task Force on Arbitration Clauses that could also play an important role in harmonization. The eventual inclusion of provisions on privilege in arbitration agreements is one of the many issues that need to be analyzed.

5. Conclusion

International arbitration has evolved significantly in recent years. Relevant results have been achieved by blending principles, procedures and practices from diverse legal cultures. However, privileges remain one of the areas where further harmonization still seems to be needed.

General rules on privileges are clearly beneficial in order to achieve certainty and predictability. However, establishing detailed provisions might raise more questions than widely-accepted solutions, particularly considering the divergent views held by domestic jurisdictions on the number, content and scope of privileges.

In the current state of affairs, it appears that harmonization could be better achieved through a step-by-step approach. The establishment of a uniform or preferred choice-of-law method-probably based on the most-favoured rule standard or any of its variations-appears to be the most suitable solution at this time.

1
A privilege has been defined as "a legally recognized right to withhold certain testimonial or documentary evidence from a legal proceeding, including the right to prevent another from disclosing such information. Whether developed judicially or by statute, each privilege reflects a judgment that the social value of excluding evidence outweighs the influence such evidence may have in ascertaining truth in a particular case. Privileges therefore reflect the public policy of the legal system that grants them." Richard M. Mosk and Tom Ginsburg, 'Evidentiary Privileges in International Arbitration', 50 International and Comparative Law Quarterly (2001) p. 346; see also Fabian von Schlabrendorff and Audley Sheppard, 'Conflict of Legal Privileges in International Arbitration: An Attempt to Find a Holistic Solution', in Gerald Aksen, et al., eds., Global Reflections on International Law, Commerce and Dispute Resolution. Liber Amicorum in Honour of Robert Briner (Paris, 2005) p. 744. In certain jurisdictions, a privilege could constitute not only a right but an obligation not to disclose certain information.

2
Henri Alvarez, 'Evidentiary Privileges in International Arbitration', in Albert Jan van den Berg, International Arbitration 2006: Back To Basics?, ICCA Congress Series (2008) p. 663. See also Michelle Sindler and Tina Wüstemann, 'Privilege across borders in arbitration: multi-jurisdictional nightmare or a storm in a teacup?', 23(4) ASA Bulletin (2005) p. 610.

3
Rubinstein and Guerrina reflect on the absence of such rules in connection with attorney-client privilege. See Javier H. Rubinstein and Britton B. Guerrina, 'The Attorney-Client Privilege and International Arbitration', 18(6) Journal of International Arbitration (2001) p. 587. See also Sindler and Wüstemann, supra n. 2, at p. 618; Bernhard F. Meyer-Hauser and Philipp Sieber, 'Attorney Secrecy v. Attorney-Client Privilege in International Arbitration', 73(2) Arbitration (2007) p. 181.

4
Sindler and Wüstemann, supra n. 2, at p. 611; Peter Rosher, 'The application and scope of attorney-client privilege in international arbitration', 2 Stockholm International Arbitration Review (2007) pp. 1-2.

5
Mosk and Ginsburg, supra n. 1, at p. 345.

6
Alvarez, supra n. 2, at p. 663-664; Klaus Peter Berger, 'Evidentiary privileges: Best practice standards versus/and arbitral discretion', 22(4) Arbitration International (2006) p. 506.

7
ICC Arbitration Rules, Art. 15.1.

8
Ibid., Art. 15.2.

9
Ibid., Art. 20.1.

10
UNCITRAL Arbitration Rules, Art. 15. See also Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Art. 19; and LCIA Arbitration Rules, Art. 14.2, among others.

11
UNCITRAL Arbitration Rules, Arts. 24.2, 24.3 and 25.6.

12
Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Arts. 26.1 and 26.3.

13
See ICC Arbitration Rules, Arts. 20.1 and 20.5; Rules of Procedure for Arbitration Proceedings of ICSID (ICSID Arbitration Rules), Art. 34; and LCIA Arbitration Rules, Art. 22.1(e) and (f).

14
Berger, supra n. 6, at p. 506; Schlabrendorff and Sheppard, supra n. 1, at p. 757; Matthieu de Boisséson, 'Evidentiary privileges in international arbitration', in Albert Jan van den Berg, International Arbitration 2006: Back To Basics?, ICCA Congress Series (2008) p. 706; Norah Gallagher, 'Legal privilege in international arbitration', 6(2) International Arbitration Law Review (2003) p. 45.

15
Rubinstein and Guerrina, supra n. 3, at pp. 593-595; Meyer-Hauser and Sieber, supra n. 3, at p. 182.

16
For example, the ALI/UNIDROIT Principles of Transnational Civil Procedure-which are equally applicable to international arbitration-provide: "18. Evidentiary Privileges and Immunities: 18.1 Effect should be given to privileges, immunities, and similar protections of a party or nonparty concerning disclosure of evidence or other information. 18.2 The court should consider whether these protections may justify a party's failure to disclose evidence or other information when deciding whether to draw adverse inferences or to impose other indirect sanctions. 18.3 The court should recognize these protections when exercising authority to impose direct sanctions on a party or nonparty to compel disclosure of evidence or other information." (adopted by the American Law Institute (ALI) in May 2004 and by the International Institute for the Unification of Private Law (UNIDROIT) in April 2004).

17
AAA International Arbitration Rules, Art. 20.6.

18
IBA Rules, Art. 9.2(b). In subsequent subsections, the rules specifically address privileges on commercial and technical information and state secrets: "(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling; (f) grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling (…)".

19
CPR Rules for Non-Administered Arbitration, Art. 12.2. See also ICC Arbitration Rules, Art. 20.7. Art. 22.6 of the CAMCA (Commercial Arbitration and Mediation Center for the Americas) Arbitration Rules similarly states that: "The admissibility, relevance, materiality and weight of the evidence offered by any party shall be determined by the tribunal, provided that the tribunal shall consider applicable principles of legal privilege."

20
Rubinstein and Guerrina, supra n. 3, at p. 593; Berger, supra n. 6, at p. 507; Mosk and Ginsburg, supra n. 1, at p. 376; de Boisséson, supra n. 14, at p. 707; Rosher, supra n. 4, at p. 16.

21
See section 3.b below.

22
Sindler and Wüstemann, supra n. 2, at pp. 614-617; Alvarez, supra n. 2, at p. 667; Mosk and Ginsburg, supra n. 1, at p. 349; Rosher, supra n. 4, at p. 1; Gallagher, supra n. 14, at p. 45. For a description of the situation in England, the United States, Germany, France and the European Union, see Schlabrendorff and Sheppard, supra n. 1, at pp. 746-756.

23
Alvarez, supra n. 2, at p. 672.

24
See, in general, Mosk and Ginsburg, supra n. 1, at pp. 349-367; Pierre Heitzmann, 'Confidentiality and Privileges in Cross-Border Legal Practice: The Need for a Global Standard?', 26(2) ASA Bulletin (2008) pp. 205-240.

25
Mosk and Ginsburg, supra n. 1, at p. 384.

26
See Diana Good, Patrick Boylan, Jane Larner and Stephen Lacey, 'Privilege: a world tour' (November 18, 2004), available at: http://crossborder.practicallaw.com/2-103-2508 (last visited on September 30, 2008); 'Privilege: the in-house view' (February 4, 2005), available at: http://crossborder.practicallaw.com/1-200-3100 (last visited on September 30, 2008); Meyer-Hauser and Sieber, supra n. 3, at p. 149 et seq.

27
Sindler and Wüstemann, supra n. 2, at p. 615. See also Mosk and Ginsburg, supra n. 1, at pp. 351-353; Klaus Berger, supra n. 6, at pp. 503-504; de Boisséson, supra n. 14, at p. 710; Rosher, supra n. 4, at pp. 2-4; Rubinstein and Guerrina, supra n. 3, at p. 591.

28
de Boisséson, supra n. 14, at p. 710; Rubinstein and Guerrina, supra n. 3, at p. 591.

29
Both the French and Argentine criminal codes regard the violation of professional secrecy as a felony.

30
See, in general, Olaf Meyer, 'Time to take a closer look: privilege in international arbitration', 24(4) Journal of International Arbitration (2007) pp. 375-377; Allison M. Hill, 'A problem of privilege: in-house counsel and the attorney-client privilege in the United States and the European Community', 27 Case W. Res. J. Int'l (1995); Meyer-Hauser and Sieber, supra n. 3, at p. 168.

31
Robert H. Smit and Audley Sheppard, eds., 'Evidentiary privileges in international arbitration', Arbitration and ADR (December 2000) p. 15.

32
[1972] 2 QB 102.

33
Ibid., at p. 129.

34
See 'In-House Counsel and the Attorney-Client Privilege', a Lex Mundi Multi-Jurisdictional Survey prepared by the Lex Mundi Dispute Resolution Practice Group (August 2007), available at: https://www.lexmundi.com/images/lexmundi/PDF/AttyClient/ 2007_Atty_Client_Update/Attorney_Client_update8.07.pdf (last visited on September 30, 2008).

35
ECJ, Case 155/79 AM & S Europe Ltd. v. Commission of the European Communities [1982] ECR 1575, para. 21. See also Hill, supra n. 30, at pp. 146-158.

36
Ibid., at para. 24.

37
CFI, Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals Ltd. and Akros Chemicals Ltd. v. Commission of the European Communities [2007] ECR II-3523.

38
See supra n. 34.

39
Mosk and Ginsburg, supra n. 1, at pp. 378-381.

40
Rosher, supra n. 4, at p. 15.

41
As it has been properly noted: "When negotiating international contracts, parties seldom (if ever) consider the privileges in their choice of substantive law nor are they all likely to intend for that law to govern privilege claims when the evidence is connected with another jurisdiction." Rosher, supra n. 4, at p. 16.

42
Berger, supra n. 6, at pp. 509-510; Alvarez, supra n. 2, at p. 684; Meyer, supra n. 30, at pp. 368-369. As stated by Rosher: "It would seem unfair and in violation of the parties' expectations then for an arbitral tribunal to apply the privilege rules of the governing law of the transaction if the allegedly privileged communication took place outside that jurisdiction and had no relationship with it." Rosher, supra n. 4, at p. 16.

43
Mosk and Ginsburg, supra n. 1, at p. 377. See also Meyer, supra n. 30, at p. 368; Schlabrendorff and Sheppard, supra n. 1, at p. 770.

44
Rubinstein and Guerrina, supra n. 3, at p. 597.

45
Jason A. Fry, 'Without prejudice and confidential communications in international arbitration (when does procedural flexibility erode public policy?)', 1(6) International Arbitration Law Review (1998) p. 210; Meyer-Hauser and Sieber, supra n. 3, at p. 183.

46
Sindler and Wüstemann, supra n. 2, at p. 622. Olaf Meyer adds: "It may well prove unrealistic to expect the parties to evaluate the pros and cons of various privilege laws in the run-up to negotiations and then negotiate appropriate agreements-perhaps even providing for different laws for the various privileges. After all, such problems (which only concern a hypothetical future dispute in any case) would only cloud the atmosphere at negotiations and jeopardize or at least delay agreement. In addition, it would be difficult for the parties to accommodate the privilege of third parties in their agreement." Meyer, supra n. 30, at p. 369.

47
Rosher, supra n. 4, at p. 15; Rubinstein and Guerrina, supra n. 3, at p. 598.

48
See Berger, supra n. 6, at p. 512; Sindler and Wüstemann, supra n. 2, at p. 618; Rubinstein and Guerrina, supra n. 3, at p. 588; Meyer-Hauser and Sieber, supra n. 3, at p. 168 et seq.

49
Alexander Yanos, 'Problems arising from the interplay of common law and civil law in international arbitration: Defining the scope of attorney-client privilege', 3(2) Transnational Dispute Management (April 2006).

50
Alvarez, supra n. 2, at p. 674.

51
Meyer, supra n. 30, at p. 367.

52
Mosk and Ginsburg, supra n. 1, at pp. 376-378; Meyer, supra n. 30, at p. 368; Rosher, supra n. 4, at pp. 16-17; Schlabrendorff and Sheppard, supra n. 1, at p. 763.

53
Alvarez, supra n. 2, at p. 667 et seq. See also Mosk and Ginsburg, supra n. 1, at p. 345.

54
Alvarez, supra n. 2, at p. 684; Mosk and Ginsburg, supra n. 1, at p. 377; Meyer, supra n. 30, at pp. 368-369.

55
With respect to the application of the domestic law at the arbitration seat, Schlabrendorff and Sheppard note: "Parties agree upon a place of arbitration for many reasons, including its neutrality, convenience and/or the mandatory or non-mandatory procedural rules applicable there. Under normal circumstances, it cannot, however, be assumed that their choice of the place of arbitration is in any way influenced by legal privilege rules that may apply to lawyers or parties in the local courts." Schlabrendorff and Sheppard, supra n. 1, at p. 769.

56
Regarding conflicts of law, the closest connection rule or the like most significant relationship have been adopted by the 1980 Rome Convention on the Law Applicable to Contractual Obligations, the 1987 Swiss Private International Law Statute, the ALI's Restatement on Conflicts of Laws and the US Federal Courts. See Heitzmann, supra n. 24, at p. 219; Meyer-Hauser and Sieber, supra n. 3, at p. 184.

57
Berger, supra n. 6, at pp. 510-511; Mosk and Ginsburg, supra n. 1, at pp. 381-382; Schlabrendorff and Sheppard, supra n. 1, at p. 768.

58
See, in general, Meyer, supra n. 30, at p. 369; Berger, supra n. 6, at pp. 511-513; Rubinstein and Guerrina, supra n. 3, at p. 598; Rosher, supra n. 4, at p. 18; Schlabrendorff and Sheppard, supra n. 1, at p. 769.

59
Rubinstein and Guerrina, supra n. 3, at p. 598. See also Meyer, supra n. 30, at p. 369.

60
Alvarez, supra n. 2, at p. 685.

61
Ibid.

62
Rubinstein and Guerrina, supra n. 3, at p. 598; Alvarez, supra n. 2, at pp. 685-686; Heitzmann, supra n. 24, at pp. 219-222. As a variant to this approach, the most favourable privilege has been defined as the one that "allows any party to the arbitration to claim the same legal privileges as are available to any other party" after it has been determined by the tribunal "which privileges may be applicable based on the closest connection test'. Schlabrendorff and Sheppard, supra n. 1, at p. 773.

63
Rubinstein and Guerrina, supra n. 3, at p. 599.

64
Art. 11.

65
Art. 12. Art. 14.1 of Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters establishes a similar criterion concerning the hearing of a person: "A request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence, (a) under the law of the Member State of the requested court; or (b) under the law of the Member State of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court."

66
Guideline 7. The ICDR has further anticipated that the next revision of its International Arbitration Rules will incorporate those guidelines.

67
Berger, supra n. 6, at pp. 518-519.

68
See IBA Rules, Art. 9.2(b).

69
Ibid., Art. 9.2(g).

70
IBA Working Party, 'Commentary on the New IBA Rules of Evidence in International Commercial Arbitration', 2 Business Law International (2000) at p. 36.

71
Rubinstein and Guerrina, supra n. 3, at p. 599.

72
Alvarez, supra n. 2, at p. 686.

73
Berger, supra n. 6, at p. 519; Alvarez, supra n. 2, at p. 686.

74
Berger, supra n. 6, at p. 519.

75
Yanos, supra n. 49.

76
Interim Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (August 1, 2008) p. 3.

77
Ibid., at p. 5. The US Congress has recently enacted the new Federal Rule of Evidence 502 to address what it characterized as "dramatic litigation cost increases". Among other aspects, the new regulation is aimed at precluding inadvertent production of attorney-client or work product information from acting as a waiver of such privileges provided that (a) the disclosure is inadvertent; (b) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (c) the holder promptly took reasonable steps to rectify the error.

78
IBA Working Party, supra n. 70, at p. 20.

79
See IBA Rules, Art. 3(3); ICDR Guidelines for Arbitrators Concerning Exchanges of Information, Guidelines 3 and 4; and the Report from the ICC Commission on Arbitration, 'Techniques for Controlling Time and Costs in Arbitration', which recommends: "limiting requests to the production of documents (whether in paper or electronic form) that are relevant and material to the outcome of the case". See also Thomas H. Webster, 'Obtaining documents from adverse parties in international arbitration', 17(1) Arbitration International (2001) pp. 41-42; Rosher, supra n. 4, at p. 14; James H. Carter, 'Discovery in Arbitration: Recent Developments', Arbitration Review of the Americas 2009 (A Global Arbitration Review Special Report) pp. 1-4 (referring to recent steps toward codification). Pre-trial discovery is generally unknown in most civil law countries, whose legislation does not generally admit document production beyond what is considered relevant to the case. See The Sedona Conference, 'Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and E-Discovery', public comment version (August 2008) pp. 14-16. See also Jonathan L. Frank and Julie Bérard, 'Electronic discovery in international arbitration: where neither the IBA rules nor U.S. litigation principles are enough', 62 Disp. Resol. J. (November 2007-January 2008) p. 68.

80
Gabrielle Kaufmann-Kohler, 'Globalization of Arbitral Procedure', 36 Vanderbilt Journal of Transnational Law (2003) p. 1325.

81
See also the ICDR Guidelines for Arbitrators Concerning Exchanges of Information, Guideline 4; CPR Draft Protocol on Pre-hearing Disclosure of Documents and Information in Arbitration.

82
In this regard, Berger notes: "The flexibility of the arbitral process has always enabled and continues to enable a mitigation of the differences of the domestic systems from which the parties come. However, it has been argued that leaving such issues to arbitral decision-making during the proceedings leads to the 'dark side of (arbitral( discretion' which lies in the discomfort that a party may feel when arbitrators make up their own rules as they go along, divorced from any precise procedural canons set in advance." Berger, supra n. 6, at p. 513. See also Mosk and Ginsburg, supra n. 1, at p. 345.

83
Rubinstein and Guerrina, supra n. 3, at p. 596.

84
Ibid., at p. 597.

85
The survey addressed to arbitration practitioners and arbitral institutions requested opinions on whether the IBA Rules should provide guidance on how an arbitral tribunal should determine any applicable legal or ethical rules of impediment or privilege and, if so, on the way such guidance could be established.

86
See Berger, supra n. 6, at pp. 513-514.

87
Mosk and Ginsburg, supra n. 1, at pp. 378-381.

88
The ALI/UNIDROIT Principles of Transnational Civil Procedure sought to establish harmonized principles and particularly addressed questions relating to privileges (see supra n. 16). However, it set out little guidance on their nature, content and scope.

89
Berger, supra n. 6, at p. 514. See also Alvarez, supra n. 2, at p. 671 (n. 31) and pp. 686-687; Meyer-Hauser and Sieber, supra n. 3, at p. 185; and, holding a different view, Mosk and Ginsburg, supra n. 1, at pp. 378-381.

90
Sindler and Wüstemann, supra n. 2, at p. 625. See also Berger, supra n. 6, at p. 520.