Evidentiary Privileges: Best Practice Standards versus/and Arbitral Discretion

摘要

The above considerations reveal that a consensus is beginning to emerge which provides arbitral tribunals with concrete and workable guidelines in dealing with privilege issues in their day-to-day work. This pragmatic consensus is based on four key observations: (1) Privilege issues must be qualified as substantive law issues. (2) The parties' standard choice of law clause in the contract usually does not extend to the issue of evidentiary privileges. (3) In determining the law applicable to a certain privilege issue, the tribunal shall apply the law of the jurisdiction with which the relevant communication is most closely connected, i.e. the law where the party has its place of business. (4) The tribunal may exclude evidence from both sides which is privileged under the law of one party but not under the law of the other based on compelling considerations of fairness or equality.