Description
It is unlikely that the ECJ would recognize the privilege of a U.S. lawyer practicing in
Europe but not admitted to the bar of an EU-member state. In AM & S Eur. Ltd.
v. Comm’n, the seminal case establishing the attorney-client privilege in the EU, the court stated in dicta that the privilege “must apply without distinction to any lawyer entitled to practise his profession in one of the member states, regardless of the member state in which the client lives. Such protection may not be extended beyond those limits .
. . .” Case 155/79, 1982 E.C.R.
1575 ¶¶ 24-25 (E.C.J.). See also Opinion of Advocate General Kokott, Akzo Nobel Chems., Ltd. v.
Comm’n, Case C-550/07P, ¶¶ 188-90 (rejecting argument that “EU law must extend the protection afforded by legal professional privilege even to communications with in-house lawyers who are members of a Bar of Law Society in a third country”). C. International Arbitration and Privilege The application of privilege in arbitration is highly variable depending upon the rules under which the arbitration takes place. Most arbitration rules do not provide guidance on the issue of privilege. These include the rules of the ICC, SCC, WIPO and LCIA.
The arbitration rules that do provide guidance vary widely in their specific provisions. For instance, the International Centre for Dispute Resolution (“ICDR”) Rules of June 2014 state with respect to privilege: The arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection. ICDR Rules, Article 22.
This approach is similar to the Renfield approach described supra. The International Institute for Conflict Prevention and Resolution (“IICPR”) Rules for NonAdministered Arbitration, on the other hand, only vaguely state: “[t]he Tribunal is not required to apply the rules of evidence used in judicial proceedings, provided, however, that the Tribunal shall apply the lawyer-client privilege and the work product immunity.” IICPR Rule 12.2. The specific application and scope of those privileges, however, is left to the discretion of the arbitration panel. Notwithstanding this variability, the widespread adoption of the IBA Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules on Evidence”) provides as close to a “standard” as can be found in international arbitration.
Those rules state that arbitrators shall, “at the request of a Party or on its own motion, exclude from evidence or production any Document . . .
[because of] legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable.” IBA Rules on Evidence, Article 9(2)(b). -23- .
v. Comm’n, the seminal case establishing the attorney-client privilege in the EU, the court stated in dicta that the privilege “must apply without distinction to any lawyer entitled to practise his profession in one of the member states, regardless of the member state in which the client lives. Such protection may not be extended beyond those limits .
. . .” Case 155/79, 1982 E.C.R.
1575 ¶¶ 24-25 (E.C.J.). See also Opinion of Advocate General Kokott, Akzo Nobel Chems., Ltd. v.
Comm’n, Case C-550/07P, ¶¶ 188-90 (rejecting argument that “EU law must extend the protection afforded by legal professional privilege even to communications with in-house lawyers who are members of a Bar of Law Society in a third country”). C. International Arbitration and Privilege The application of privilege in arbitration is highly variable depending upon the rules under which the arbitration takes place. Most arbitration rules do not provide guidance on the issue of privilege. These include the rules of the ICC, SCC, WIPO and LCIA.
The arbitration rules that do provide guidance vary widely in their specific provisions. For instance, the International Centre for Dispute Resolution (“ICDR”) Rules of June 2014 state with respect to privilege: The arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection. ICDR Rules, Article 22.
This approach is similar to the Renfield approach described supra. The International Institute for Conflict Prevention and Resolution (“IICPR”) Rules for NonAdministered Arbitration, on the other hand, only vaguely state: “[t]he Tribunal is not required to apply the rules of evidence used in judicial proceedings, provided, however, that the Tribunal shall apply the lawyer-client privilege and the work product immunity.” IICPR Rule 12.2. The specific application and scope of those privileges, however, is left to the discretion of the arbitration panel. Notwithstanding this variability, the widespread adoption of the IBA Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules on Evidence”) provides as close to a “standard” as can be found in international arbitration.
Those rules state that arbitrators shall, “at the request of a Party or on its own motion, exclude from evidence or production any Document . . .
[because of] legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable.” IBA Rules on Evidence, Article 9(2)(b). -23- .
