City Bar Authors Deep Dive into Asserting and Evaluating Privilege Claims in International Arbitration

The New York City Bar Association has authored a report presenting “the range of alternatives available in asserting and evaluating privilege claims and to identify best practices.” According to the report, “While much has been written on the choice of law governing privilege, the procedures parties should use to assert claims of privilege, and tribunals may use in evaluating those claims, have received little attention.”

The focus of the report is international commercial and investor-state arbitration, as opposed to domestic arbitration in the United States or elsewhere in which expectations may be more influenced by practice in domestic courts. 

The report’s principal recommendations include: 

• An arbitral tribunal should usually address early in the arbitration—prior to the time when the parties will search for documents responsive to production requests—expectations respecting the assertion of privilege claims in connection with document production. 
• Unlike in domestic litigation practice in the United States and some other common law jurisdictions, there should be no presumption in favor of having the parties use detailed, document-by-document privilege logs to identify the documents being withheld and the basis of withholding.  
• The Report identifies advantages of in camera review—principally efficiency and rulings based on full information—and disadvantages—including the potential intrusion on the privilege. The Report outlines several alternatives.
  

The City Bar thanks its International Commercial Disputes Committee for its work on this report, which was also endorsed by the City Bar Arbitration Committee.

Read the full report here: https://bityl.co/MBiH