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18 J. Int'l Arb. 587 (2001)
Attorney-Client Privilege and International Arbitration, The

handle is hein.kluwer/jia0018 and id is 599 raw text is: Journal of International Arbitration 18(6): 587-602, 2001. C 2001 Kluuer Law International. Printed in The Netherlands. The Attorney-Client Privilege and International Arbitration Javier H. RUBINSTEIN* and Britton B. GUERRINA** I. INTRODUCTION The popularity and growth of international arbitration as a means of resolving commercial disputes has largely been driven by the flexibility and control that parties are given in crafting the framework that will govern an eventual dispute, including the rules of procedure, the arbitral situs, the identity and qualifications of the arbitrators, and the governing law. There are, however, some areas where the laws governing international arbitration are substantially unsettled, and this must be addressed if international arbitration is to provide a predictable means of dispute resolution. One of the most glaring of these areas is the law governing the attorney-client relationship in international arbitration and, in particular, the nature and extent of the attorney-client privilege. There are currently no rules governing the attorney-client privilege in the context of international arbitration. The rules of some arbitral institutions provide that the arbitral tribunal may admit all evidence that is not privileged. In doing so they beg a very basic question: what, precisely, is - or should be - privileged in the context of an international arbitration? The answer is neither obvious nor simple. Because of this ambiguity, parties, attorneys, and arbitral tribunals are left to their own devices in determining what will be accorded the protection of privilege in any given arbitration. This result is untenable, particularly because there exist very different conceptions of the attorney-client privilege throughout the world. What is privileged? What is the scope of the privilege? Who does the privilege belong to? What duties do attorneys have towards their clients in terms of protecting privileged information? The answers to these questions vary significantly across jurisdictional lines. The purpose of this article is to identify the difficulties that currently exist in attempting to apply the attomey-client privilege in international arbitration, and to describe the practical impact that these difficulties can pose. We also propose some solutions that parties and arbitral tribunals can consider as they seek to overcome the uncertainty in this important area of the law. However, because this topic is so large and the territory nearly uncharted, we do not attempt a comprehensive treatment of the subject. * Javier H. Rubinstein is a partner in the International Arbitration Group of Mayer, Brown & Platt in Chicago. He is also a lecturer at the University of Chicago Law School, where he teaches international commercial arbitration and litigation. ** Britton B. Guerrina is an associate in Mayer, Brown & Platt's International Arbitration Group. Copyright © 2007 by Kluwer Law International. All rights reserved. No claim asserted to original government works.

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