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Attorney-Client Privilege in International Arbitration by Möckesch, Annabelle (26th January 2017)
- Preliminary Material
- Main Text
- 1 Introduction
- Preliminary Material
- I Introduction to the Research Subject
- II Outline of the Study
- III A Note on Resources from Arbitral Practice
- IV Introduction of Key Terms and the Document Production Process
- Part 1 Comparative Overview of Concepts of Attorney–Client Privilege
- Preliminary Material
- 2 United States of America
- Preliminary Material
- 2.01
- 2.02
- I Course of a Lawsuit
- II Taking of Evidence in Civil Litigation
- III Attorney–Client Privilege
- IV Work-Product Protection
- 3 England and Wales
- Preliminary Material
- 3.01
- I The Woolf Reform and the Civil Procedure Rules
- II Course of a Lawsuit
- III Taking of Evidence in Civil Litigation
- IV Legal Professional Privilege
- 4 Germany
- Preliminary Material
- 4.01
- 4.02
- I Course of a Lawsuit
- II Taking of Evidence in Civil Litigation
- III Attorney–Client Privilege
- 5 European Union
- Preliminary Material
- 5.01
- 5.02
- I Investigative Powers of the European Commission
- II Attorney–Client Privilege
- 6 Comparison—Similarities and Differences in the Laws on Attorney–Client Privilege
- Part 2 Determining the Applicable Attorney–Client Privilege Standard
- Preliminary Material
- 7 Seeking Inspiration from Judicial and Administrative Proceedings for the Arbitral Context
- Preliminary Material
- 7.01
- 7.02
- 7.03
- 7.04
- 7.05
- 7.06
- 7.07
- I National Civil Court Proceedings
- A United States of America
- 7.08
- 1 Interstate conflict of laws
- 7.09
- 7.10
- 7.11
- 7.12
- a) Law applicable to the substance of the dispute
- b) Privilege law of the forum state
- c) Conflict-of-laws rules of the state in which the court sits
- 7.19
- 7.20
- i) Restatement (First) of Conflict of Laws
- ii) Governmental interest analysis
- iii) ‘Most significant relationship’ test of the Restatement (Second) of Conflict of Laws
- iv) ‘Centre of gravity’ test
- v) Section 139 of the Restatement (Second) of Conflict of Laws
- vi) ‘Better law’ approach
- vii) Reasonable reliance test
- viii) Territorial solution: Application of the law of the state in which the lawyer practises
- d) Summary
- 2 International conflict of laws
- B Germany
- A United States of America
- II EU Competition Law Investigations
- III Judicial Assistance Proceedings
- IV Summary
- 8 Applicable Privilege Standard in International Commercial Arbitration
- Preliminary Material
- 8.01
- 8.02
- 8.03
- 8.04
- I Party Autonomy
- II Characterization of Attorney–Client Privilege as Procedural
- III Legal Framework for Attorney–Client Privilege in International Commercial Arbitration Proceedings
- IV Constraints on the Arbitral Tribunal’s Discretion
- 8.44
- A International Mandatory Rules of Law
- B Recognition and Enforcement of Arbitral Awards under the New York Convention
- 8.53
- 8.54
- 8.55
- 8.56
- 8.57
- 8.58
- 8.59
- 8.60
- 8.61
- 8.62
- 8.63
- 1 First scenario: the arbitral tribunal rejects the application of attorney–client privilege in total
- 2 Second scenario: the arbitral tribunal applies such a high standard of attorney–client privilege that the parties are virtually unable to present their case
- 3 Third scenario: the arbitral tribunal adopts an attorney–client privilege standard different from that of the place of enforcement
- V Possible Solutions to Determine the Applicable Attorney–Client Privilege Standard
- 8.83
- A General Principles of Law
- B Choice-of-Law Approaches Leading to the Application of a Single National Law
- 8.93
- 8.94
- 8.95
- 8.96
- 8.97
- 8.98
- 8.99
- 1 Interest analysis
- 2 Touch base test
- 3 Section 139 of the Restatement (Second) of Conflict of Laws
- 4 Functional approach
- 5 Closest connection test
- 8.109
- 8.110
- 8.111
- 8.112
- 8.113
- 8.114
- 8.115
- a) Seat of arbitration
- b) Law governing the merits of the dispute
- c) Place where the communication took place
- d) Place where the document was created or received
- e) Place where the document is stored
- f) Law applicable to the contract of retainer between lawyer and client
- g) Place where the lawyer with whom the communication took place is admitted to the bar or practises
- h) Domicile of the party claiming privilege
- i) Comparison and conclusion
- C Cumulative Application of Several National Laws
- D Autonomous Standard
- E Comparison of Possible Solutions
- VI Corrective Measures
- VII Conclusion
- 9 Applicable Privilege Standard in Investor–State Arbitration and Comparison with International Commercial Arbitration
- Preliminary Material
- 9.01
- 9.02
- 9.03
- 9.04
- 9.05
- 9.06
- 9.07
- I Arbitrations under NAFTA Chapter Eleven
- 9.08
- A SD Myers, Inc v Canada
- B Pope & Talbot v Canada
- C United Parcel Service of America, Inc v Canada
- D Glamis Gold Ltd v United States
- E Merrill & Ring Forestry LP v The Government of Canada
- F Vito G Gallo v Canada
- G Bilcon of Delaware et al v Government of Canada
- H Apotex Holdings Inc and Apotex Inc v United States of America
- I St Marys VCNA, LLC v The Government of Canada
- J Windstream Energy LLC v Government of Canada
- II Arbitrations under Bilateral Investment Treaties and National Investment Laws
- III Conclusion and Comparison with International Commercial Arbitration
- Part 3 Devising Rules for Attorney–Client Privilege in International Arbitration: A Draft Proposal
- 10 Devising Rules for Attorney–Client Privilege in International Arbitration: A Draft Proposal
- Preliminary Material
- 10.01
- I Desirability of Further Rules for Attorney–Client Privilege in International Arbitration
- II Type and Content of Proposed Rules for Attorney–Client Privilege in International Arbitration
- III Appropriate Instrument to Implement Proposed Rules for Attorney–Client Privilege in International Arbitration
- IV Draft Proposal
- 11 Conclusions and Outlook
- 11.01
- Comparative Overview of Concepts of Attorney–Client Privilege
- Applicable Attorney–Client Privilege Standard in Judicial and Administrative Proceedings
- Applicable Attorney–Client Privilege Standard in International Commercial Arbitration
- Applicable Attorney–Client Privilege Standard in Investor–State Arbitration
- Proposed Rules for Attorney–Client Privilege in International Arbitration
- Outlook
- 10 Devising Rules for Attorney–Client Privilege in International Arbitration: A Draft Proposal
- 1 Introduction
- Further Material
