Privilege remains a persistent problem for parties, counsel, and arbitrators in international arbitration. It presents a challenge to which there can be no single, perfect solution in complex arbitral proceedings where the law and practice of several jurisdictions may be relevant to the selection of appropriate rules of privilege. It is, however, possible to identify a growing consensus from a close study of international arbitral practice and the considerable scholarship in this area. This article examines the key approaches which arbitral tribunals may take to resolve the issue of privilege in international arbitration, drawing upon the existing guidance of institutional and procedural rules, national laws and the theoretical bases for privilege in all legal systems. Based on this analysis and the consensus which emerges, this article tenders a definitive revision of existing procedural rules which would provide the certainty, without unnecessary prescription, that this complex area of arbitral procedure demands.
Journal of International Arbitration