- Privilege — Choice of law — Conflict of laws — Arbitration — Confidentiality — Confidentiality and privilege
A. The Need for Attorney–Client Privilege and Differences between National Laws
1.01 Companies as well as individuals seeking legal assistance require that their lawyers are fully informed and give candid advice. However, the exchange of information between the lawyer and the client will only be open and frank if the communicated information cannot be used against the client in subsequent litigation or arbitration proceedings.1 Attorney–client privilege protects open and candid (p. 2) communication between lawyer and client2 by, broadly speaking, providing a right to refuse to disclose confidential communications between lawyer and client.3
1.02 The concept of attorney–client privilege is recognized in almost all jurisdictions.4 However, the nature and the scope of the privilege differ significantly from jurisdiction to jurisdiction. These differences are rooted in the national procedural rules governing the taking of evidence. In common law countries like the United States of America (henceforth ‘United States’) and England and Wales (henceforth ‘England’), document disclosure5 is an integral part of litigation proceedings. Under certain circumstances, a party must produce documents to the opposing party even if such documents are detrimental to the former party’s case.6 Comprehensive case law dealing with attorney–client privilege has developed, which has the effect of limiting and countering the scope of disclosure.7
1.03 By contrast, in civil law jurisdictions like Germany, each party regularly only produces the documents on which it bases its claims or defences in litigation proceedings. Under German civil procedural law, there is no general obligation (p. 3) to produce documents to the other side that are detrimental to one’s case.8 Without such a disclosure obligation, there was no need to develop an elaborate doctrine of attorney–client privilege as has evolved in common law jurisdictions. Under the German Code of Civil Procedure, only the lawyer has an explicit right to refuse to testify or to produce documents.9 Also, the scope of the privilege is tied to the lawyer’s secrecy obligations contained in the German Criminal Code and the lawyer’s ethical rules.10
1.04 Just as attorney–client privilege varies in nature by jurisdiction, so does it vary in scope. By way of example, one striking difference between the privilege laws of different jurisdictions is the protection of communications with in-house counsel. While US and English law afford protection to this type of communication,11 in certain civil law jurisdictions, such as France and Switzerland, such communications are not privileged.12
1.05 National laws also have different rules regarding the question of whether the privilege attaches to communications with third parties. Under German law, for the privilege to attach it does not matter who communicates with the lawyer. Attorney–client privilege protects information that a lawyer obtains from a client or that client’s agents as well as from third persons, provided that the information relates to the mandate.13 The same can be said about Swiss and Japanese law.14 On the contrary, under English law, communications between a lawyer and third persons are only protected under litigation privilege.15 Similarly, in the United States, (p. 4) communications with third persons who are not the client’s or the lawyer’s agents are not protected by attorney–client privilege and may only be covered by work-product protection.16
1.06 Again differently and quite peculiarly, French law provides that privilege also attaches to communications between opposing counsel. The lawyer is not even allowed to forward to his client a confidential letter sent by the opposing counsel.17
1.07 Another example of discrepancies between national laws is the question of who can waive the privilege: the client or the lawyer. Under US, English, German,18 Japanese,19 and Brazilian law,20 only the client can waive the privilege. By contrast, under French law, waiving the privilege is the lawyer’s prerogative.21 Again differently, Turkish law only allows a lawyer to testify if the client has consented, that is has waived the privilege. However, even in case of waiver, the lawyer can still refuse to testify based on his own right.22 By way of another variation, under Russian law, both the client and the lawyer can waive the privilege.23
• whether, in addition to the lawyer, the client may invoke the privilege;
• who qualifies as a client under the privilege;
• whether the privilege protects the communications or the underlying facts;
• whether the lawyer’s work product is protected;
• whether the privilege is absolute (or subject to a balancing of interests); and
• whether the inadvertent disclosure of documents results in waiver of privilege.24
1.09 Regardless of the existing discrepancies in the domestic privilege rules, there is a need for attorney–client privilege not only on the domestic but also on the transnational level. In a time of growing globalization, many companies operate across borders and seek legal advice relating to transnational transactions. When disputes arise from these transactions, these can be settled, inter alia, through litigation or arbitration. In both types of proceedings, attorney–client privilege can be invoked as a defence against disclosure of confidential communications between lawyer and client. Because of its advantages such as neutrality of forum, international enforceability of awards, ability to choose expert arbitrators, party autonomy, (p. 5) flexibility of procedure, and confidentiality,25 arbitration is widely considered the preferred means of resolving disputes crossing borders.26 As arbitration plays such an important role in the resolution of international disputes, this book focuses on attorney–client privilege in international arbitration.
B. The Role of Attorney–Client Privilege in International Arbitration
1.10 In international arbitration proceedings attorney–client privilege can be become relevant at several levels. Attorney–client privilege is typically invoked when a party or third party is requested by another party or the arbitral tribunal to produce documents. In this context, it should be noted that the production of documents by the parties has become a widely accepted element of international arbitration.27 In recent years, a common practice regarding document production has emerged, combining elements of both the common law and civil law procedure.28 Arbitral (p. 6) tribunals typically order the production of documents that have been sufficiently identified, that are relevant to the case and material to its outcome, and that are in the possession, custody, or control of the requested party.29
1.11 Parties or third parties may also assert attorney–client privilege when asked to testify before the arbitral tribunal.30 Attorney–client privilege issues may further arise when a party seeks to rely only on a part of a document or a part of a series of privileged communications. Then the question is whether attorney–client privilege has been waived regarding other parts of the document or of a series of privileged communications. A party may also introduce a privileged document in the arbitration that the other party claims to have disclosed inadvertently or that has been obtained by improper means. Similarly, the question of waiver of privilege arises. If, in any of these instances, the opposing party does not accept the claim of privilege, the arbitral tribunal will have to decide whether or not the privilege attaches to the relevant communications. To do so, the arbitral tribunal will have to determine the applicable attorney–client privilege standard.
C. The Difficulties in Determining the Applicable Attorney–Client Privilege Standard in International Arbitration and the Need for Clear Guidance
1.12 The determination of the applicable attorney–client privilege standard in international arbitration is aggravated by three factors. First, international arbitration proceedings take place in transnational settings and regularly involve parties, counsel, and arbitrators from diverse legal backgrounds. Because of the discrepancies in the (p. 7) national attorney–client privilege laws, these international participants are likely to have different expectations as to the applicable privilege standard, which are influenced by their experience in domestic litigation.31
1.13 Second, the legal framework governing international arbitration provides only very limited guidance to arbitral tribunals for determining the applicable privilege standard. Unlike litigation proceedings before national courts, which have one set of procedural rules, a fixed procedural code that is applicable to all arbitration proceedings does not exist.32 Moreover, arbitral tribunals are typically not required to apply the procedural rules of national courts at the seat of arbitration.33 National arbitration legislation, institutional arbitration rules, and the UNCITRAL Arbitration Rules of 2010 (henceforth ‘UNCITRAL Rules’)34 do not contain detailed rules regarding the conduct of the proceedings, including the taking of evidence. In particular, these instruments do not contain provisions on the scope of attorney–client privilege or set out conflict-of-laws rules determining the applicable national privilege law. Rather, they leave the conduct of the proceedings including the taking of evidence to the discretion of the arbitral tribunal.35
1.14 Even the IBA Rules, which are the most detailed set of evidentiary rules in international arbitration and have gained wide acceptance in the international arbitration community,36 do not contain provisions resolving the difficulty of determining the (p. 8) applicable privilege standard. Article 9.2(b) of the IBA Rules provides that ‘[t]he Arbitral Tribunal shall … exclude from evidence or production any document, statement, oral testimony or inspection for … legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable’. Article 9.3(a) summarizes the core of attorney–client privilege: the tribunal may consider ‘any need to protect the confidentiality of a Document created or statement or oral communication made in connection with and for the purpose of providing or obtaining legal advice’. Article 9.3(d) addresses the issue of waiver. Article 9.3(c) and (e) contain factors an arbitral tribunal may take into account when determining the applicable privilege standard. These factors include the parties’ expectations and the need to maintain fairness and equality between the parties.
1.15 Furthermore, unlike in litigation proceedings where courts can, and in certain jurisdictions must, refer to past decisions,37 in international commercial arbitration arbitral tribunals regularly cannot rely on past arbitral awards and procedural orders as these usually remain confidential.38 While an increasing number of awards have been published in investor–state arbitration, only a few decisions on privilege are in the public domain.39 Also, unlike in other areas such as document production40 and witness examination,41 no best practice standard has evolved for dealing with attorney–client privilege in international arbitration.42
1.16 While there is considerable writing on the subject of attorney–client privilege,43 many commentators have limited themselves to alerting the reader to the issue and (p. 9) presenting several options regarding the determination of the applicable standard. They have refrained from clearly defining a particular way that arbitral tribunals should follow.44 These authors may have done so to preserve a certain flexibility when sitting as arbitrators or acting as counsel in future cases. As a consequence, when arbitral tribunals are called on to determine the applicable privilege standard, they find no clear guidance. In view of the complexity of the issue, it has been said that ‘the only thing that is clear is that nothing is clear in this area’.45 Peter Rosher has illustratively referred to the ‘privilege minefield’.46
1.17 This situation is obviously unsatisfactory, since ‘attorney–client privilege will encourage communications between attorney and client only if both parties know at the time of the communications whether the privilege will apply. If they are uncertain, their communications will be chilled, and the purpose of the privilege will be entirely defeated’.47 This book aims to fill the existing gap in arbitral scholarship by providing clear guidelines for determining the applicable attorney–client privilege standard.
1.18 The study consists of eleven chapters. It will proceed in the following way: Chapter 1 contains this introduction and sets out the key terms relevant to the following chapters and a few practical observations on the document production process in international arbitration.
1.19 Part 1 provides a comparative overview of different concepts of attorney–client privilege, examining the privilege laws of the United States (Chapter 2), England (Chapter 3), and Germany (Chapter 4). This part also sets out the jurisprudence of the Court of Justice of the European Union (henceforth ‘CJEU’) on attorney–client privilege in the context of competition law investigations (Chapter 5). Chapter 6 compares these laws and explains their similarities and differences.
1.20 Part 2 is the heart of this book. It deals with the determination of the applicable privilege standard in international arbitration. This part will be divided into three chapters. The first chapter (Chapter 7) examines how national courts in the United States and Germany determine the applicable standard in cross-border civil litigation and how the CJEU determines the standard in competition law investigations, seeking inspiration for the arbitral context. This chapter also examines the application of attorney–client privilege in judicial assistance proceedings under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970 (henceforth ‘the Hague Convention’)48 and 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 (henceforth ‘Regulation 1206/2001’).49
1.21 The second chapter of Part 2 (Chapter 8) contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (henceforth ‘New York Convention’).50 Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include (i) the application of general principles of law, (ii) the application of a single national law determined through a choice-of-law approach, (iii) the cumulative application of several national laws, and (iv) the creation of an autonomous standard defining the substantive scope of attorney–client privilege. Lastly, (p. 11) it will be examined whether corrective measures are needed to ensure equality and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.
1.22 The third chapter of Part 2 (Chapter 9) examines how arbitral tribunals have determined the applicable attorney–client privilege standard in investor–state arbitration and explores whether the solution proposed for international commercial arbitration can also be adopted in investor–state arbitration.
1.23 Part 3 (Chapter 10) discusses whether further rules for attorney–client privilege are desirable in light of the current framework for attorney–client privilege in international arbitration and contains a rules proposal. The discussion contained in this part includes identifying the appropriate type of rules, devising the content of the proposed rules, and selecting the appropriate legal instrument to implement these rules.
1.24 Chapter 11 contains the conclusions from the preceding chapters and a brief outlook.
1.25 International commercial arbitration proceedings are regularly conducted in private51 and arbitral awards and procedural orders are only rarely published.52 Similarly, in investor–state arbitration, there are only a few decisions on privilege that have been published.53 Therefore, information on the determination of the applicable attorney–client privilege standard in international arbitration from legal practice is limited. In order to be able to provide a more comprehensive analysis of the subject, the author interviewed thirty-three international arbitration practitioners in the UK, France, and Germany in 2009.54 These interviews are used as anecdotal evidence throughout the book. The author promised to treat the information from these interviews confidentially and will thus not identify individual opinions.
1.26 As a preliminary matter, it will be necessary to clarify certain key terms used throughout this book. These terms include privilege (A), attorney–client privilege (B), and work-product protection (C). Moreover, privilege will be contrasted with the duty of confidentiality in international commercial arbitration (D) and attorney–client privilege will be contrasted with the lawyer’s duty of confidentiality (E). Lastly, a few practical observations will be made on the document production process (F).
1.27 There is no uniform definition of the term ‘privilege’. In Black’s Law Dictionary, privilege is defined as ‘[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty’.55 In a similar vein, Tom Ginsburg and Richard M Mosk have defined privilege 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’.56
1.28 Various types of privileges exist. These include professional privileges such as attorney–client privilege, doctor–patient privilege, journalist’s privilege, priest–penitent privilege, and accountant–client privilege. Moreover, there is a privilege against self-incrimination. Other types of privileges concern communications between spouses and other family members, state secrets, and business secrets. Lastly, the so-called without prejudice or settlement privilege attaches to communications that are made during settlement negotiations.
1.29 Different jurisdictions recognize different privileges. The English common law, for example, does not recognize professional privileges other than attorney–client privilege.57 By contrast, German procedural law recognizes all of the professional privileges mentioned above.58
1.30 As the nature and scope of attorney–client privilege differ from jurisdiction to jurisdiction, there is no single definition of attorney–client privilege. Instead, various definitions exist. In Black’s Law Dictionary attorney–client privilege is defined as ‘[t]he client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney’.59
1.31 The term attorney–client privilege is mainly used in the United States. In England, attorney–client privilege is called legal professional privilege (henceforth ‘legal privilege’). Australian legal terminology refers to client legal privilege or professional legal privilege. In Canada, the equivalent concept is called solicitor–client privilege. In France, the equivalent to attorney–client privilege is secret professionnel de l’avocat, in Spain, secreto profesional del abogado, and in Italy, segreto professionale dell’avvocato. In Germany the equivalent to attorney–client privilege is called Anwaltsgeheimnis or Anwaltsprivileg. In international commercial arbitration, the two terms most frequently used are attorney–client privilege and legal privilege. Attorney–client privilege is also the term used throughout this book.
1.32 A US concept similar to attorney–client privilege is work-product protection. As with attorney–client privilege, there is no single definition of work-product protection. In Black’s Law Dictionary work product is defined as
tangible material or its intangible equivalent, in unwritten or oral form, that was either prepared by or for a lawyer or prepared for litigation, either planned or in progress. Work product is generally exempt from discovery or other compelled disclosure. The term is also used to describe the products of a party’s investigation or communications concerning the subject matter of a lawsuit if made (1) to assist in the prosecution or defence of a pending suit, or (2) in reasonable anticipation of litigation.60
1.34 Privilege is often confused with the duty of confidentiality and therefore it is important to distinguish it from the latter.61 In the arbitral context, the duty of (p. 14) confidentiality typically refers to the obligation not to disclose to third persons the existence and subject matter of the arbitration, the documents that are prepared for and exchanged in the arbitration, such as submissions, witness statements, expert reports, and hearing transcripts, and the arbitral tribunal’s procedural orders and awards.62 The exact scope of the duty of confidentiality differs from arbitration to arbitration, depending on the parties’ agreement and the legal framework applicable in the particular case.63
1.35 By contrast, privilege concerns the right of a party or third party to refuse to produce documents or refuse to testify in arbitration proceedings. Thus, it relates to the question of whether in arbitration proceedings a party is allowed to withhold documents or information from the other side and the arbitral tribunal. It does not concern the question of whether a party is allowed to disclose facts that pertain to the arbitration to third persons or the public.
1.36 A distinction must be drawn between attorney–client privilege and the lawyer’s legal or ethical duty of confidentiality. While attorney–client privilege is an evidentiary rule that is concerned with compelled disclosure of certain confidential communications between lawyer and client in judicial and administrative proceedings,64 the lawyer’s duty of confidentiality goes further. It obliges the lawyer to keep secret any information the client has entrusted him with in any setting, including non-judicial settings.65
1.37 Under German law, for example, the attorney–client privilege is contained in procedural codes,66 whereas the lawyer’s duty of confidentiality is contained in Section 203(1)(3) of the Criminal Code (criminal liability for non-compliance with duty of confidentiality) and Section 43a(2) of the Federal Lawyers’ Act (ethical duty of confidentiality). In the United States, the lawyer’s duty of confidentiality can be found in Rule 1.6(a) of the Model Rules of Professional Conduct. While in Germany the scope of the privilege is determined in accordance with the legal and (p. 15) ethical rules and therefore the scope of the privilege and the duty of confidentiality correspond,67 in the United States the scopes differ.68
1.38 Determining the applicable rules governing attorney–client privilege claims is a preliminary step for arbitral tribunals before deciding whether the documents over which privilege is claimed are in fact privileged under the applicable standard.69 Against this background, a few practical observations will be made on managing the document production process in international arbitration and on attorney–client privilege claims within that process.
1.39 As reflected in Article 3 of the IBA Rules,70 the document production process typically involves the following steps: (i) each party submits to the other side (and sometimes also the tribunal) its requests to produce documents or categories of documents;71 (ii) the party to whom a request has been made must either produce the requested documents or state its objections;72 (iii) if an objection is made, the arbitral tribunal may invite the parties to consult;73 and (iv) if the parties cannot reach an agreement, either party can request the arbitral tribunal to rule on the production of these documents.74
1.40 One tool that is regularly used as a basis for such tribunal rulings is the so-called Redfern Schedule,75 named after its first proponent Alan Redfern.76 This schedule is a table containing the following four columns: (i) identification of the requested document or category of documents; (ii) justification for the request by the requesting party; (iii) comments and/or objections on the request for production by the requested party; and (iv) the arbitral tribunal’s decision on the request.77 It has (p. 16) been suggested to amend the Redfern Schedule by including a fifth column, in which the requesting party is allowed to comment on objections of the other side.78
1.41 If a party bases its objection on privilege, a so-called privilege log, a tool that has its origin in US litigation,79 is often used in international arbitration.80 A privilege log contains a list describing the documents that are responsive to the production requests but that the producing party claims to be privileged. Without revealing the privileged aspects of the document, the description will typically include the type of document, its general subject matter, its date, its author, and its recipients.81 It will further contain the type of privilege asserted such as attorney–client privilege.
1.42 When deciding on a document production request, the arbitral tribunal will either dismiss the request or order production of the requested document or documents in whole or in part. To protect sensitive or confidential information, the arbitral tribunal may also order production of redacted documents, that is documents from which the protected information is deleted.82
1.43 Sometimes it will be necessary that the arbitral tribunal review the content of a document or documents in order to decide whether or not production should be ordered. The arbitral tribunal may either conduct an in camera review of the documents, within which the documents are not disclosed to the requesting party, or appoint a neutral expert to conduct the review.83 An advantage of the latter option is that the arbitral tribunal’s decision cannot be influenced by the content of privileged documents that are inadmissible as evidence.84 Moreover, the in camera review by the arbitral tribunal may raise due process concerns because only the tribunal and the requested party have access to the documents if the tribunal rejects their production.85
1 See, eg, Swidler & Berlin v US 524 US 399, 408 (1998); Fisher v US 425 US 391, 403 (1976); Rice, et al, Attorney–Client Privilege in the United States (2nd edn, Thomson West December 2014) § 2:3; Mueller and Kirkpatrick, Federal Evidence (4th edn, Thomson West June 2015) § 5:13; Greenwald, Stauffer, and Schrantz, Testimonial Privileges (Thomson West October 2015) § 1:1; Alfes, Das Anwaltsgeheimnis des Syndikusanwalts und des fest angestellten Unternehmensjuristen (Recht und Wirtschaft 1999) 40 ff; Chr Wolf and Hasenstab, ‘Der grenzüberschreitende Schutz des Anwaltsgeheimnisses in Europa, Kollisionsrechtliche Überlegungen anlässlich der EuGH-Rechtssache Akzo Akcros’ BRAK-Mitt 2010, 150, 156; R Magnus, ‘Der Schutz der Vertraulichkeit bei grenzüberschreitender Anwaltstätigkeit’ RabelsZ 77 (2013) 111, 119; Meyer-Hauser and Sieber, ‘Attorney Secrecy v Attorney–Client Privilege in International Commercial Arbitration’ (2007) 73 Arbitration 148; but see Coester-Waltjen, Internationales Beweisrecht (Rolf Gremer 1983) para 580, who argues that essentially only journalist’s privilege has an effect on the behaviour of the professional.
2 See, eg, Upjohn Co v US 449 US 383, 389 (1981); Sindler and Wüstemann, ‘Privilege across Borders in Arbitration: Multi-jurisdictional Nightmare or a Storm in a Teacup?’ (2005) 23 ASA Bulletin 610, 611; M Mann, Anwaltliche Verschwiegenheit und Corporate Governance (1st edn, Eul 2009) p 14; R Magnus (n 1) 111, 119; Rice, et al (n 1) § 2:3. For a detailed assessment of the privilege’s purpose and rationale see also para 6.4.
3 See Burn and Skelton, ‘The Problem with Legal Privilege in International Arbitration’ (2006) 72 Arbitration 124. See also para 1.30.
4 See Smit and Sheppard, ‘Evidentiary Privileges in International Arbitration: Introduction’ (2000) 5/3 Arbitration and ADR, the Newsletter of Committee D of the International Bar Association Section on Business Law 12; Ginsburg and Mosk, ‘Evidentiary Privileges in International Arbitration’ (2001) 50 ICLQ 345, 351; Gallagher, ‘Legal Privilege in International Arbitration’ (2003) 6(2) Int ALR 45; Burn and Skelton (n 3) 124; Rosher, ‘The Application and Scope of Attorney–Client Privilege in International Arbitration’ SIAR 2007:2, 1; Kneisel and Lecking, ‘Verteidigungsstrategien gegen die Anordnung der Document Production—insbesondere nach den IBA-Regeln zur Beweisaufnahme in der internationalen Schiedsgerichtsbarkeit’ SchiedsVZ 2013, 150, 155; Born, International Commercial Arbitration (2nd edn, Kluwer Law International 2014) p 2380. Notable exceptions are China (see Ning and Huawei, ‘Legal Privilege and Confidentiality in China’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 85, 86) and the United Arab Emirates (see Mills, ‘Legal Privilege and Confidentiality in the United Arab Emirates’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 313). However, in China and the United Arab Emirates document production does not exist (see Ning and Huawei, ‘Legal Privilege and Confidentiality in China’ 85; Mills, ‘Legal Privilege and Confidentiality in the United Arab Emirates’ 313).
6 For the scope of US discovery see Rule 26 of the Federal Rules of Civil Procedure (henceforth ‘FRCP’); for the scope of English disclosure see Rule 31 of the Civil Procedure Rules (henceforth ‘CPR’); see also paras 2.29 and 3.12–3.33.
8 Wagner, ‘Europäisches Beweisrecht—Prozessrechtsharmonisierung durch Schiedsgerichte’ ZEuP 2001, 441, 466; Triebel and Zons, ‘Discovery of Documents in Internationalen Schiedsverfahren—Theorie und Praxis’ IDR-Beilage 2002, 26, 28; Rosenberg, Schwab, and Gottwald, Zivilprozessrecht (17th edn, CH Beck 2010) § 109 para 8; Jauernig and Hess, Zivilprozessrecht (30th edn, CH Beck 2011) § 26 para 12. The same can be said about other jurisdictions such as Russia (Kurochkin, ‘Legal Privilege and Confidentiality in Russia’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 229) and Switzerland (Burckhardt, ‘Legal Privilege and Confidentiality in Switzerland’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 279, 280).
10 See R Magnus, Das Anwaltsprivileg und sein zivilprozessualer Schutz (Mohr Siebeck 2010) p 51; M Mann (n 2) 13. For further information on the German law of attorney–client privilege see paras 4.45–4.81.
11 For US law see Upjohn Co v US 449 US 383, 394 ff (1981); for English law see Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2)  2 QB 102, 129 per Lord Denning MR (CA); see also paras 2.50 and 3.55.
12 For French law see Baudesson and Rosher, ‘Le Secret Professionnel Face Au Legal Privilege’ Int’l Bus LJ 2006, 37, 41; R Magnus (n 10) 129; for Swiss law see Burckhardt (n 8) 279, 284 ff; for the laws of further jurisdictions see the overview prepared by Lex Mundi (Lex Mundi, In-House Counsel and the Attorney–Client Privilege (2012) <www.lexmundi.com> accessed 15 July 2016).
13 See para 4.71.
14 For Swiss law see Burckhardt (n 8) 279, 283; for Japanese law see Tezuka and Yajima, ‘Legal Privilege and Confidentiality in Japan’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 183, 188.
15 See para 3.54.
16 See para 2.49.
17 R Magnus (n 10) 132 ff.
18 For US, English, and German law see Part 1.
19 Tezuka and Yajima (n 14) 183, 189.
20 Castex Aidar and Penteado de Castro, ‘Legal Privilege and Confidentiality in Brazil’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 31, 36.
21 R Magnus (n 10) 142 ff.
23 Kurochkin (n 8) 229, 232.
24 See Part 1.
25 See Goode, Kronke, and McKendrick, Transnational Commercial Law (OUP 2007) para 17.05; Moses, The Principles and Practice of International Commercial Arbitration (2nd edn, CUP 2012) 1; Born (n 4) 73 ff; for a detailed discussion of advantages and disadvantages of arbitration see Lachmann, Handbuch für die Schiedsgerichtspraxis (3rd edn, Dr Otto Schmidt 2008) paras 119 ff.
26 See Lalive, ‘Transnational (or Truly International) Public Policy and International Arbitration’ in Sanders (ed), ICCA Congress Series No 3 (Kluwer Law International 1987) 258, 293; Schwab and Walter, Schiedsgerichtsbarkeit (7th edn, CH Beck 2005) Chapter 41 para 1; Blackaby, et al, Redfern and Hunter on International Arbitration (6th edn, OUP 2015) para 1.01; Goode, et al, Transnational Commercial Law (2nd edn, OUP 2012) 968; Born, International Arbitration (Kluwer Law International 2012) 9; Moses (n 25) 1; Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law International 2012) 5; Ashford, ‘Document Production in International Arbitration: A Critique from “Across the Pond” ’ (2012) 10 Loy U Chi Int’l Rev 1, 2. This is reflected by the significant increase in the case load of arbitral institutions in the past decades. The International Chamber of Commerce, for example, reports that 801 requests for arbitration were filed in 2015 (1 ICC Disp Res Bul 7, 10 (2016)) in comparison to 529 requests that were filed in 1999 and 344 requests that were filed in 1986 (see <www.iccwbo.org> accessed 15 July 2016). For the growth in the use of arbitration see also Paulsson, Rawding, and Reed, The Freshfields Guide to Arbitration Clauses in International Contracts (3rd edn, Kluwer Law International 2011) 10 ff; Hoffmann, ‘Schiedsgerichte als Gewinner der Globalisierung? Eine empirische Analyse zur Bedeutung staatlicher und privater Gerichtsbarkeit für den internationalen Handel’ SchiedsVZ 2010, 96 ff; White & Case and School of International Arbitration, Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration <www.arbitration.qmul.ac.uk> accessed 15 July 2016 p 5, which reports that 90 per cent of the survey participants identified arbitration as their preferred mechanism for dispute resolution either as a stand-alone method (56 per cent) or together with other alternative forms of dispute resolution (34 per cent).
27 Kaufmann-Kohler and Bärtsch, ‘Discovery in International Arbitration: How much is too much?’ SchiedsVZ 2004, 13; Hanotiau, ‘Document Production in International Arbitration: A Tentative Definition of “Best Practices” ’ (2006) ICC ICArb Bull, Document Production in International Arbitration—Special Supplement 113, 114; McDougall and Bouchardie, ‘L’Arbitre International et la Preuve Documentaire’ Int’l Bus LJ 2008, 509, 512; Wyss, ‘Trends in Documentary Evidence and Consequences for Pre-arbitration Document Management’ (2010) 13(3) Int ALR 111, 113. The situation is different as regards the production of documents by third parties. Unlike national courts, arbitral tribunals lack the power to compel third parties to produce documents (Kaufmann-Kohler and Bärtsch, SchiedsVZ 2004, 13, 18; Born (n 4) 2343; Waincymer (n 26) 854 ff).
28 Kaufmann-Kohler, ‘Globalization of Arbitral Procedure’ (2003) 36 Vand J Transnat’l L 1313, 1327; Sachs, ‘Use of Documents and Document Discovery: “Fishing Expedition” versus Transparency and Burden of Proof’ SchiedsVZ 2003, 193, 198; Kaufmann-Kohler and Bärtsch (n 27) 13, 18; Krapfl, Die Dokumentenvorlage im internationalen Schiedsverfahren (Lang 2007) 261; McDougall and Bouchardie (n 27) 509, 510; Born (n 4) 2321; Tercier and Bersheda, ‘Document Production in Arbitration: A Civil Law Viewpoint’ in Wirth, Rouvinez, and Knoll (eds), The Search for the “Truth” in Arbitration (Juris 2011) 77, 92 ff.
29 See Article 3 of the IBA Rules on the Taking of Evidence in International Arbitration of 2010 (henceforth ‘IBA Rules’) (<www.ibanet.org> accessed 15 July 2016), which has codified this standard practice (Triebel and Zons (n 8) 26, 31; Sachs (n 28) 193, 198; McDougall and Bouchardie (n 27) 509, 510 ff; O’Malley, ‘The Procedural Rules Governing the Production of Documentary Evidence in International Arbitration—As Applied in Practice’ (2009) 8 LPICT 27, 28; O’Malley, ‘An Annotated Commentary on the 2010 Revised IBA Rules of Evidence for International Arbitration’ (2010) 27(4) ICLR 463, 465; 2015 International Arbitration Survey (n 26) 21, which reports that 70 per cent of the survey participants believe that Article 3 of the IBA Rules should be the applicable standard for document production in international arbitration); see also Kaufmann-Kohler and Bärtsch (n 27) 13, 18; Hamilton, ‘Document Production in ICC Arbitration’ (2006) ICC ICArb Bull, Document Production in International Arbitration—Special Supplement 63, 69 ff.
30 In this regard, it bears mention that, unlike in certain jurisdictions such as Germany, it is widely accepted in international arbitration that parties as well as third persons can be examined as witnesses (Bühler and Dorgan, ‘Witness Testimony Pursuant to the 1999 IBA Rules of Evidence in International Commercial Arbitration—Novel or Tested Standards?’ (2000) 17(1) J Int’l Arb 3, 7; Wagner (n 8) 441, 490; Schumacher, Beweiserhebung im Schiedsverfahren (Manz 2011) para 287; see also Article 4(2) of the IBA Rules).
31 See von Schlabrendorff and Sheppard, ‘Conflict of Legal Privileges in International Arbitration: An Attempt to Find a Holistic Solution’ in Aksen, et al (eds), Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (International Chamber of Commerce 2005) 743.
32 Sheppard and von Schlabrendorff, ‘Legal Privilege and Confidentiality in Arbitration’ in Greenwald and Russenberger (eds), Privilege and Confidentiality (2nd edn, International Bar Association 2012) 357; Born (n 26) 156.
33 Poudret and Besson, Comparative Law of International Arbitration (2nd edn, Sweet & Maxwell 2007) para 522; Alvarez, ‘Evidentiary Privileges in International Arbitration’ in van den Berg (ed), ICCA Congress Series No 13 (Kluwer Law International 2007) 663; Blackaby, et al (n 26) para 6.01; Born (n 26) 156.
34 <www.uncitral.org> accessed 15 July 2016.
35 See, eg, Article 19(2) of the UNCITRAL Model Law on International Commercial Arbitration of 2006 (henceforth ‘UNCITRAL Model Law’) (<www.uncitral.org> accessed 15 July 2016); Section 1042(2) of the German Code of Civil Procedure; Article 1464 of the New French Code of Civil Procedure; Article 182 of the Swiss Private International Law Act; Article 17.1 of the UNCITRAL Rules; Article 19 of the ICC Rules of Arbitration of 2012 (henceforth ‘ICC Rules’) (<www.iccwbo.org> accessed 15 July 2016); Article 14.5 of the LCIA Arbitration Rules of 2014 (henceforth ‘LCIA Rules’) (<www.lcia.org> accessed 15 July 2016); Article 24.1 of the DIS Arbitration Rules of 1998 (henceforth ‘DIS Rules’), (<www.disarb.org> accessed 15 July 2016); Articles 19 and 26(1) of the SCC Arbitration Rules of 2010 (henceforth ‘SCC Rules’) (<www.sccinstitute.com> accessed 15 July 2016); see also Born (n 26) 149 ff; paras 8.26–8.43.
36 See Raeschke-Kessler, ‘The Contribution of International Arbitration to Transnational Procedural Law’ in Aksen, et al (eds), Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (International Chamber of Commerce 2005) 647, 672; Kaufmann-Kohler, ‘Soft Law in International Arbitration: Codification and Normativity’ (2010) 1(2) J Int’l Disp Settlement 283, 296; Trittmann and Kasolowsky, ‘Taking of Evidence in Arbitration Proceedings between Common Law and Civil Law Traditions—the Development of a European Hybrid Standard for Arbitration Proceedings’ (2008) 31 UNSW LJ 330, 333.
39 See Chapter 9.
40 Kaufmann-Kohler (n 28) 1313, 1325 ff; Helmer, ‘International Commercial Arbitration: Americanized, “Civilized”, or Harmonized?’ (2003) 19 Ohio St J on Disp Resol 35, 50; Voser, ‘Harmonization by Promulgating Rules of Best Practice in International Arbitration’ SchiedsVZ 2005, 113, 116; McDougall and Bouchardie (n 27) 509, 510; Tercier and Bersheda (n 28) 77, 92 ff; Hoffmann and Shetty, ‘Evidence and Hearings’ in van den Berg (ed), ICCA Congress Series No 17 (Kluwer Law International 2013) 197, 203.
42 See Sindler and Wüstemann (n 2) 610, 612; Meyer-Hauser and Sieber (n 1) 148, 181 ff; Grierson and van Hooft, Arbitrating under the 2012 ICC Rules (Kluwer Law International 2012) 180; Player and Morel de Westgaver, ‘Lawyer–Client Privilege in International Arbitration—A Blurred Area Prone to Unpredictability or Useful Flexibility?’ (2009) 12(5) Int ALR 101; Cohen, ‘Options for Approaching Evidentiary Privileges in International Arbitration’ in Giovannini and Mourre (eds), Written Evidence and Discovery in International Arbitration (International Chamber of Commerce 2009) 423, 424; Sheppard and von Schlabrendorff (n 32) 357, 359; but see Tevendale and Cartwright-Finch, ‘Privilege in International Arbitration: Is It Time to Recognize the Consensus?’ (2009) 26(6) J Int’l Arb 823, 836, who state that ‘preferred approaches are emerging’.
43 Ginsburg and Mosk (n 4) 345 ff; Rubinstein and Guerrina, ‘The Attorney–Client Privilege and International Arbitration’ (2001) 18(6) J Int’l Arb 587 ff; Gallagher (n 4) 45 ff; Meyer-Hauser, Anwaltsgeheimnis und Schiedsgericht (Schulthess 2004) paras 146 ff; Sindler and Wüstemann (n 2) 610 ff; von Schlabrendorff and Sheppard (n 31) 743 ff; Burn and Skelton (n 3) 124 ff; K-P Berger, ‘Evidentiary Privileges: Best Practice Standards versus/and Arbitral Discretion’ (2006) 22 Arb Int’l 501 ff; Varga, Beweiserhebung in transatlantischen Schiedsverfahren (Nomos 2006) 163 ff; Meyer-Hauser and Sieber (n 1) 148 ff; Meyer, ‘Time to Take a Closer Look: Privilege in International Arbitration’ (2007) 24(4) J Int’l Arb 365 ff; Rosher (n 4) 1 ff; Shaughnessy, ‘Dealing with Privileges in International Commercial Arbitration’ (2007) 51 Scandinavian Studies in Law 451 ff; Alvarez (n 33) 663 ff; Boisséson, ‘Evidentiary Privileges in International Arbitration’ in van Berg (ed), ICCA Congress Series No 13 (Kluwer Law International 2007) 705 ff; Krapfl (n 28) 299 ff; Heitzmann, ‘Confidentiality and Privileges in Cross-Border Legal Practice: The Need for a Global Standard?’ (2008) 26 ASA Bulletin 205 ff; Tevendale and Cartwright-Finch (n 42) 823 ff; Tawil and Lima, ‘Privilege-Related Issues in International Arbitration’ in Giovannini and Mourre (eds), Written Evidence and Discovery in International Arbitration (International Chamber of Commerce 2009) 29 ff; Cohen (n 42) 423 ff; Born (n 4) 2375 ff; K-P Berger, ‘Evidentiary Privileges under the Revised IBA Rules on the Taking of Evidence in International Arbitration’ (2010) 13(5) Int ALR 171 ff; Hunter and Travaini, ‘Electronically Stored Information and Privilege in International Arbitration’ in Fernández-Ballesteros and Arias (eds), Liber Amicorum Bernardo Cremades (La Ley 2010) 615 ff; Schumacher (n 30) paras 228 ff; Reiser, ‘Applying Privilege in International Arbitration: The Case for a Uniform Rule’ (2012) 13 Cardozo J Conflict Resol 652 ff; Kozlowska, ‘Privilege in a Multi-jurisdictional Area of International Commercial Arbitration’ (2011) 14(4) Int ALR 128 ff; Rodríguez Vargas, ‘Los Privilegios Probatorios (Evidentiary Privileges) en Arbitraje Internacional, en Especial el Secreto Profesional, Privilegios Abogadocliente y Privilegio de Negociación (Settlement Privilege)’ Spain Arbitration Review 2012/15, 79 ff; O’Malley, Rules of Evidence in International Arbitration (Informa 2012) paras 9.18 ff; Waincymer (n 26) 800 ff; Zuberbühler, et al, IBA Rules of Evidence (Schulthess 2012) Article 9 paras 19 ff; Sheppard and von Schlabrendorff (n 32) 357 ff; Hoffmann and Shetty (n 40) 197, 207 ff.
44 See, eg, Hunter and Travaini (n 43) 615, 624, who state in their conclusion that they ‘are painfully aware that they have identified more problems than solutions’.
46 Rosher (n 4) 1, 2.
47 Bradford, ‘Conflict of Laws and the Attorney–Client Privilege: a Territorial Solution’ (1991) 52 U Pitt L Rev 909, 943; see also Upjohn Co v US 449 US 383, 393 (1981); Rubinstein and Guerrina (n 43) 587, 597; von Schlabrendorff and Sheppard (n 31) 743, 766; K-P Berger (n 43) 501, 502; Chr Wolf and Hasenstab (n 1) 150, 156; R Magnus (n 1) 111, 129.
48 <www.hcch.net> accessed 15 July 2016.
50 <www.uncitral.org> accessed 15 July 2016.
52 See para. 1.15.
53 See Chapter 9.
54 The following persons were interviewed: Louise Barrington, Gary Born, Louis Degos, Siegfried Elsing, Steven Finizio, Laurent Gouiffès, Inka Hanefeld, Peter Heckel, Marc Henry, Jean-Christophe Honlet, Martin Hunter, Neil Kaplan, Richard Kreindler, Joachim Kuckenburg, Toby Landau, Marc-Olivier Langlois, Fernando Mantilla-Serrano, Pierre Mayer, Wendy Miles, Loukas Mistelis, Alexis Mourre, William W Park, Jan Paulsson, Jörg Risse, Kenneth Rokison, José Rosell, Peter Rosher, Fabian von Schlabrendorff, Rolf Schütze, Franz Schwarz, Matthew Secomb, Matthew Weiniger, and Peter Wolrich.
55 Garner, Black’ s Law Dictionary (10th edn, Thomson West 2014) <www.westlaw.com> accessed 15 July 2016, privilege.
57 Three Rivers District Council v Bank of England (No 5)  QB 1556, para 26 per Longmore LJ (CA); see also Nagel and Gottwald, Internationales Zivilprozessrecht (7th edn, Dr Otto Schmidt 2013) § 10 para 104; Wagner (n 8) 441, 479.
58 See Section 383(1) Nos 4–6 of the German Code of Civil Procedure; see also Chr Berger, in Stein and Jonas (eds), ZPO (23rd edn, Mohr Siebeck 2015) § 383 paras 29 ff; Damrau, in Krüger and Rauscher (eds), Münchener Kommentar ZPO (4th edn, CH Beck 2012) § 383 paras 22 ff; Greger, in Zöller (ed), ZPO (31st edn, Dr Otto Schmidt 2016) § 383 paras 11 ff.
59 Garner (n 55) privilege, attorney–client privilege.
60 Garner (n 55) work product.
63 See Poudret and Besson (n 33) para 368; Smeureanu, Confidentiality in International Commercial Arbitration (Kluwer Law International 2011) 27 ff; Ly, Friedman, and Radicati di Brozolo, ‘International Law Association International Commercial Arbitration Committee’s Report and Recommendations on “Confidentiality in International Commercial Arbitration” ’ (2012) 28 Arb Int’l 355, 359; Sheppard and von Schlabrendorff (n 32) 357, 376 ff.
66 For civil litigation the relevant provisions are Sections 383(1) No 6 and 142(2) of the German Code of Civil Procedure. See also para 4.45.
68 Christensen, ‘A Comparison of the Duty of Confidentiality and the Attorney–Client Privilege in the US and China: Developing a Rule of Law’ (2011) 34 T Jefferson L Rev 171, 172; Mueller and Kirkpatrick (n 1) § 5:3; Wright and Miller (n 65) § 5472.
70 In the words of Gary Born, the IBA Rules ‘set forth a relatively frequently used, and sensible, procedure for tribunal-ordered document disclosure in international arbitration’ (Born (n 4) 2348). For further information on the IBA Rules see paras 8.36–8.42.
71 See Article 3.2 of the IBA Rules; see also Born (n 4) 2349.
72 See Article 3.4 and 3.5 of the IBA Rules; see also Born (n 4) 2349.
74 See Article 3.5 of the IBA Rules; see also Born (n 4) 2350.
75 Blackaby, et al (n 26) para 6.100; Born (n 4) 2349; O’Malley (n 43) para 3.63; 2015 International Arbitration Survey (n 26) 22, which reports that on average, in 37 per cent of arbitrations the Redfern Schedule is used. In addition, the ICC Commission Report on Controlling Time and Costs in Arbitration recommends the use of the Redfern Schedule to manage document production requests efficiently (ICC Commission on Arbitration and ADR, ICC Commission Report on Controlling Time and Costs in Arbitration (2012) <www.iccwbo.org> accessed 15 July 2016 para 52.
78 See Waincymer (n 26) 872.
79 Finizio, ‘Discovery in International Arbitration: Frankenstein’s Monster in the Digital Age’ in Böckstiegel, K-P Berger, and Bredow (eds), The Taking of Evidence in International Commercial Arbitration (Carl Heymanns 2010) 57, 71; McIlwrath and Savage, International Arbitration and Mediation: A Practical Guide (Kluwer Law International 2010) para 5–189.
80 Finizio (n 79) 57, 70.
81 ibid 71.
82 Kaufmann-Kohler and Bärtsch (n 27) 13, 20.
83 See Article 3.8 of the IBA Rules, which also provides this procedure. See also Sindler and Wüstemann (n 2) 610, 626; Kaufmann-Kohler and Bärtsch (n 27) 13, 20. Hans van Houtte has called this expert ‘document production master’ inspired by US practice (van Houtte, ‘The Document Production Master and the Experts’ Facilitator: Two Possible Aides for an Efficient Arbitration’ in Fernández-Ballesteros and Arias (eds), Liber Amicorum Bernardo Cremades (La Ley 2010) 1147, 1148).