This chapter examines these objections to the admissibility of evidence. After examining the legal sources of the conclusive objections found in national arbitration laws, institutional rules and soft law, we then analyze the main evidentiary objections. The chapter concludes with a number of observations on the Tribunal`s decisions on admissibility and on questions of annulment or recognition and enforcement of arbitral awards made pursuant to those decisions arising therefrom. How, then, can questions of privilege be resolved in international arbitrations where claimants, defendants and arbitrators may all come from different jurisdictions? The answer is not easy to find. In addition, this approach may pose challenges for counsel for parties if they consider their own ethical obligations of confidentiality and/or advice given on the basis of their legitimate belief in the applicability of certain rules of privilege. If the rules of privilege applied by the arbitral tribunal were less broad in scope than the ethical rules of the local bar association, a lawyer may be required to disclose documents in accordance with the national rules of confidentiality of disputes applied by the arbitral tribunal, while being obliged to refrain from doing so under the local rules to which his lawyer`s licence is subject. In practice, without the parties having expressly chosen the substantive law, the procedural law or the preferred right, arbitrators have significant discretion to resolve each of these issues, limited by (i) the public policy requirements of the law of the place of arbitration and (ii) the general requirements of fair and equal treatment (1). It is in the nature of international arbitration that parties and their lawyers often come from different nationalities with different legal backgrounds. Nowhere is this diversity greater than in the context of privilege – the protection from disclosure and disclosure generally afforded to communication between management and the relevant in-house counsel or external legal counsel when seeking legal advice. There are actually very few guidelines on this. It is almost unknown that the parties explicitly stipulate in their dispute resolution agreement which rules of privilege should apply.
Most arbitration laws and institutional arbitration rules provide little or no guidance. For example, the UNCITRAL Model Law, the English Arbitration Act 1996, the ICC Rules and the LCIA Rules are all silent on this issue; They simply provide that, in the absence of agreement between the parties, it is for the Tribunal to decide procedural and evidentiary issues at its discretion, in accordance with the overriding principles of fairness and equal treatment. The evaluation of evidence by a court may be subject to appeal against the subsequent award for violation of the right to be heard, if the arbitral tribunal failed to take into account or assess an aspect relevant to the decision, in particular if a party can prove that this violated the procedural rules agreed upon by the parties. [107] However, a mere erroneous assessment of the evidence is generally not considered a violation of the right to be heard or public order. [108] The “worst-case” approach also has its drawbacks. When applying this approach, there is a risk that a party will argue that it will not be treated equally or fairly, for example whether it would be entitled to a higher level of legal protection under its national rules on solicitor-client privilege or the rules most closely related to its solicitor-client communication. In practice, this approach may lead a party to legitimately assume that solicitor-client privilege applies to certain documents, but to have to disclose those documents, as the arbitral tribunal has chosen to apply national rules of legal privilege that offer a lower level of protection. Second, we provide an overview of the principles that arbitrators often rely on when choosing the applicable law of privilege. Third, we provide practical advice and possible approaches to choosing the applicable lien law when parties come from different privilege regimes. Finally, I would like to make a few concluding remarks. (e) the need to preserve fairness and equality between the parties, in particular when they are subject to different legal or ethical rules. [5] In principle, examination of the closest connection could lead to different legal privileges for different parties, for example if the party`s lawyers reside in different countries. The application of different degrees of legal privilege to different parties would violate their right to equal arms.
The applicant should only be able to request a document from the opposing party if he himself is required to produce the same type of document. [68] In order to treat the parties fairly, jurists propose the most-favoured-nation rule as a pragmatic solution, which means that the rule that legal privilege is strongest is the rule applied to all parties. [69] The solution, therefore, is to “give the parties what they ask for and compensate for the inequalities.” [70] This approach is sometimes criticized for hindering the search for evidence and perhaps even leading to a “super privilege.” [71] The choice of rules may vary depending on how the courts determine whether the question of privilege is procedural or substantive. Civil law systems generally characterize it as a substantive right. Common law jurisprudence generally characterizes it as a procedural issue (29). If the court considers the privilege to be a procedural law factor, it is generally governed by the law of the seat of the arbitral tribunal (lex arbitri). If privilege is considered to be a question of substance, the applicable law is rather the law governing the content of the dispute or the law that has a “close connection” with the evidence in question. In our view, the most practical and appropriate choice for a standard rule is the most-favoured-nation approach, as it promotes respect for the expectations of the parties without sacrificing equality of arms. There are also a number of exceptions to privilege in the United States, including: (c) the expectations of the parties and their counsel at the time the legal obstacle or privilege is alleged to have arisen; It would be preferable for the parties to agree jointly on the privileges applicable at the commencement of the arbitration, unless they have already done so in the contract with their arbitration agreement.
In this context, it may also be useful for arbitral tribunals to circulate a list of potential legal issues that the parties could consider at the outset of the arbitral tribunal, including the issue of solicitor-client privilege. In addition, an arbitral tribunal could ask the parties to make brief observations on legal privilege, after which it could inform the parties of specific (future) issues that might arise from such disputes. While one possibility may be to challenge the accuracy or weight of the opposing party`s evidence, another possibility may be to challenge its admissibility by raising evidentiary objections. It is then up to the court to assess the evidence[2], including its admissibility. [3] The rules relating to the admissibility of evidence may apply equally to all forms of evidence (e.g., documents, witness statements, expert testimony). [4] When analysing the national legal privileges to be applied, account should be taken of whether the legal privilege is procedural or substantive in nature. There is no clear answer to this question. From the Dutch point of view, legal privilege is classified as a procedural matter. [8] Other civil courts, e.g. Germany, Belgium and Italy, also regard solicitor-client privilege as a procedural matter, as it also concerns the limitation of disclosure of evidence – this restriction is considered a question of procedural law. [9] On the contrary, most common law countries, such as Canada, Hong Kong, Thailand, the United States and the United Kingdom, characterize legal privilege as a substantive right because certain types of legal privilege are considered substantive protection.