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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Document Production and Legal Privilege in International Commercial Arbitration

Document Production and Legal Privilege in International Commercial Arbitration

Chapter:
(p.347) 21 Document Production and Legal Privilege in International Commercial Arbitration
Source:
Practising Virtue
Author(s):

Julian D M Lew

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198739807.003.0022

This chapter discusses applying legal privilege to document production in international commercial arbitration. Legal privilege may justify keeping confidential information, evidence, or documents out of the record, even before a court or tribunal. But it can also be used, unjustifiably and abusively, as a shield to hide evidence which is adverse to and perhaps even determinative of the other party’s case. The question for the tribunal when legal privilege is claimed and challenged is whether the privilege claim is justified and how to verify it. The tribunal must reach its determination of the parties’ rights and obligations on the basis of the relevant contract terms, applicable law, and relevant evidence. Resolving claimed legal privilege is similar, although it will not determine the substantive dispute per se. Accordingly, the tribunal must always seek to verify whether the legal privilege claimed is justified in the particular circumstance in which it is raised.

Keywords:   legal privilege, document production, international commercial arbitration

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