Cardozo Journal of Conflict Resolution
Abstract
This Note will answer that question by exploring the available means of resolving privilege disputes, with special attention to challenges of attorney-client privilege, and analyzing their practicability and value. Part I will discuss the background of privilege in international arbitration by addressing arbitral discretion, choice of procedural and substantive law, and the multitude of issues surrounding the recognition of privilege. Part II will identify the principles of party expectation and equality and discuss their importance in resolving the privilege problem. It will also set out the competing viewpoints on the practicality of a transnational standard. Finally, Part III will investigate the various approaches an arbitrator may adopt in resolving privilege issues by assessing their advantages and disadvantages. In addition, it will propose a solution that takes into account the significant arbitration principles. Ultimately, this Note proposes to implement a default rule that would apply in all arbitration proceedings in the absence of a specified contractual provision. This default rule will incentivize parties to specify what arbitration rules should apply in their contracts, ultimately reducing the arbitrariness and unpredictability that plague arbitral proceedings.
Disciplines
Dispute Resolution and Arbitration | International Law | Law
Recommended Citation
Rachel Reiser,
Applying Privilege in International Arbitration: The Case for a Uniform Rule,
13
Cardozo J. Conflict Resol.
653
(2012).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol13/iss2/12