Abstract

Dealing with Privilege Claims in International Arbitration:

A Pragmatic Approach

José-Miguel Júdice; Ana Coimbra Trigo

English

Legal privilege is one of the few grounds that parties can raise to object to document production. Its underlying concern is to allow clients to confide in lawyers so that lawyers may, in turn, better advise them. Although globally applied, legal privilege is regulated locally where lawyers are qualified. Different expectations might therefore arise from parties in international arbitration despite parties’ equality being a key principle in evidence production. As the parties’ arbitration agreement is usually silent on this issue, arbitrators must decide how to deal with privilege claims. This article explores the different ways to achieve the best possible balance between parties’ expectations and procedural fairness.