What are the types of privilege?
What laws apply to privilege?
What guidance is provided on privilege?
How may tribunals apply laws on privilege?
What are the practical considerations on privilege?
A privilege is ‘a legally recognised right to withhold certain testimonial or documentary
evidence from a legal proceeding, including the right to prevent another from disclosing such
information’1.
In international arbitration, the most common types of privilege that arise are:
Legal professional/Solicitor-client/Attorney-client privilege
Settlement/‘Without prejudice’ privilege
Business secrets privilege
Government information privilege
What is Settlement/Without Prejudice Privilege?
Settlement/Without prejudice privilege refers to privilege attached to communications made
for the purpose of attempting to settle the dispute 2. This privilege aims at encouraging open
and candid discussions aimed at an amicable resolution of disputes. Otherwise, it would be
‘perverted into a mere farce’3. If these discussions could be produced before a court/tribunal,
parties would be hesitant to engage in any meaningful attempt to discuss their respective
positions. As Fry comments, ‘Arbitral tribunals should think hard before accepting evidence
of a without prejudice character. The greater flexibility and economy now afforded to arbitral
tribunals may in fact undermine what has long been accepted as the desirable goal that it is
better that parties should attempt to resolve their disputes themselves’4.
The conditions of applying such privilege differs between states.
In common law countries, the rules on such privilege developed through statute and
case law. For example, under UK law, any written/oral communication made for the purpose
of a ‘genuine attempt to compromise a dispute between the parties’ is subject to this
privilege. In the UK, Cutts5 ruled that ‘[P]arties should be encouraged so far as possible to
settle their disputes without resort to litigation (this would apply equally to arbitration) and
should not be discouraged by the knowledge that anything that is said in the course of such
negotiations … may be used to their prejudice in the course of the proceedings’. In the US,
Goodyear6 ruled that ‘In order for settlement talks to be effective, parties must feel
uninhibited in their communications. Parties are unlikely to propose the types of compromise
that most effectively lead to settlement unless they are confident that their proposed solutions
cannot be used on cross-examination. ...Without a privilege, parties would more often forego
negotiations for the relative formality of a trial’.
Whereas in civil law countries, the protection of settlement discussions is afforded
under confidentiality obligations emanating from lawyers’ ethics rules, which serve to render
settlement discussion privileged. Typically, these rules provide that communications between
lawyers are confidential and cannot be produced in court without the parties’ consent. For
1
Mosk, Richard M., and Ginsburg, Tom, "Evidentiary Privileges in International Arbitration" I.C.L.Q.
Vol.50(2), p.345 at 346.
2
Hollander & Adam, Documentary Privilege (7th ed., 2000) p.170.
3
Klaus Peter Berger (2008) ‘The Settlement Privilege – A General Principle of ADR Law 24 Arb. Int’l 265, p.
273.
4
Stephen Fry (1998) ‘Without Prejudice and Confidential Communications in International Arbitration (When
Does Procedural Flexibility Erode Public Policy?)’, Int’l Arb. L. Rev. 209, at p. 213
5
Cutts v Head [1982] Ch.290 at p.306.
6
Goodyear Tire & Rubber Co. v Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003)
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