Privilege in arbitration (England and Wales)
Produced in partnership with Simmons & Simmons LLP
Privilege in arbitration (England and Wales)

The following Arbitration guidance note Produced in partnership with Simmons & Simmons LLP provides comprehensive and up to date legal information covering:

  • Privilege in arbitration (England and Wales)
  • Privilege in arbitration
  • Privilege under English law
  • Privilege and institutional arbitration rules
  • Privilege and the IBA Rules of Evidence
  • Privilege and the tribunal’s discretion
  • Production orders and privilege
  • What should I do about privilege?

Privilege in arbitration

The procedure for preparation and presentation of documentary evidence in arbitration is not the same as in English litigation. In domestic arbitration between English parties under English law it is clear that English rules of evidence would apply and what would constitute privilege in litigation, would also constitute privilege in arbitration—see: Privilege under English law.

However, in international arbitration it is not so simple. Arbitrators regularly deal with parties based in two or more jurisdictions, and the agreement to arbitrate may be governed by another foreign law; the dispute may be mostly closely connected with a different jurisdiction; arbitrators and counsel may be appointed from different legal backgrounds and the arbitration itself may be governed by institutional rules, or by none.

For example, in a dispute between an English party and a Japanese party (Japan being a country that does not have a separate legal concept of privilege), should the English party be permitted to object to the disclosure of certain documents on the grounds of privilege when, on the other hand the Japanese party may disclose the same categories of documents in line with its customary legal practice? In these situations it can be seen that there is the potential for a clash of legal cultures, a danger that the parties’ legal advisers will make assumptions in