Part I Commentary on the ICDR International Rules, 22 Article 22—Privilege
Martin F Gusy, James M Hosking
Martin F. Gusy, James M. Hosking
- Arbitral tribunals — Privilege — Arbitration — Admissibility of evidence
This chapter explores Article 22 of the ICDR Rules, which mandates that the tribunal is to take into account applicable principles of legal privilege and provides a general guideline to the tribunal when faced with potentially inconsistent legal privilege rules being applied to different parties. Determining legal privilege issues falls within the scope of the tribunal’s broad discretion to manage the arbitral proceedings and the exchange of information and often requires the tribunal to make determinations on the availability and admissibility of evidence. Privilege issues frequently arise in international arbitrations, but resolving these issues can often be complex, as there are few established norms on how legal privilege applies across different jurisdictions. As such, inherent in the first sentence of Article 22 is the tribunal’s task of determining what the ‘applicable principles of privilege’ are.