This paper purports to give an overview of evidentiary privileges in international arbitration including several theoretical frameworks for their analysis and practical approaches for handling conflicts over evidentiary privileges.
After summarizing the different privileges commonly asserted, this article outlines a set of guiding principles stemming from an emerging consensus in international arbitration. Also, examples based on past experiences shed light on the way in which these guiding principles would work in practice.
Finally, the author maintains that the absence of detailed, harmonized regulation on evidentiary privileges in international arbitration may prove helpful and be preferred to a fixed, positivized set of rules. Due process and enforceability of arbitral awards may ultimately be improved by approaching conflicts over evidentiary privileges in light of two core principles that must guide the ordering of any proceedings: fairness and equality. At the same time, legal certainty could not be considered to be impaired under this approach where parties’ expectations are to be assessed on account of the chosen dispute resolution mechanism —international arbitration— which, by definition, disallows parochial procedural perspectives.
Iurgium [previously Spain Arbitration Review]