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Attorney-client privilege is often invoked as a defence in international arbitration proceedings however the participants often have very different expectations regarding the applicable privilege standard, as national attorney-client privilege laws vary widely between jurisdictions. This is complicated by the fact that institutional arbitral rules do not include provisions on the scope of attorney-client privilege, nor do they outline the conflict of laws issues determining the applicable national privilege law. The applicable level of privilege is therefore left to the discretion of the arbitral tribunal.
Drawing on interviews with more than thirty leading international arbitration practitioners and extensive academic research, this book is the first of its kind to provide clear guidance to arbitral tribunals regarding the determination of the applicable attorney-client privilege standard. It compares attorney-client privilege in key common and civil law jurisdictions, analyses precedent from previous tribunals, and finally sets out proposed changes to the legal framework governing this area.
List of contents
- 1: Introduction
- Part 1: Comparative Overview of Concepts of Attorney-Client Privilege
- 2: United States of America
- 3: England and Wales
- 4: Germany
- 5: European Union
- 6: Comparison - Similarities and Differences in the Laws on Attorney-Client Privilege
- Part 2: Determining the Applicable Attorney-Client Privilege Standard
- 7: Seeking Inspiration from Judicial and Administrative Proceedings for the Arbitral Context
- 8: Applicable Privilege Standard in International Commercial Arbitration
- 9: Applicable Privilege Standard in Investor-State Arbitration 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
- 11: Conclusions and Outlook
About the author
Annabelle Möckesch is an associate in the Dispute Resolution Group of Schellenberg Wittmer in Zurich. She acts as counsel and tribunal secretary in domestic and international arbitration proceedings under various institutional and ad hoc rules. Before joining Schellenberg Wittmer, the author was associate at Hanefeld Rechtsanwälte in Hamburg and Assistant Legal Counsel at the Permanent Court of Arbitration in The Hague During her practical legal training, she worked, inter alia, in the litigation and arbitration team of Hengeler Mueller in Berlin and Frankfurt and in the foreign investment department of the German Federal Ministry for Economic Affairs and Energy.
Summary
Attorney-client privilege is often invoked as a defence in international arbitration proceedings however the participants often have very different expectations regarding the applicable privilege standard, as national attorney-client privilege laws vary widely between jurisdictions. This is complicated by the fact that institutional arbitral rules do not include provisions on the scope of attorney-client privilege, nor do they outline the conflict of laws issues determining the applicable national privilege law. The applicable level of privilege is therefore left to the discretion of the arbitral tribunal.
Drawing on interviews with more than thirty leading international arbitration practitioners and extensive academic research, this book is the first of its kind to provide clear guidance to arbitral tribunals regarding the determination of the applicable attorney-client privilege standard. It compares attorney-client privilege in key common and civil law jurisdictions, analyses precedent from previous tribunals, and finally sets out proposed changes to the legal framework governing this area.
