Brower/Sharpe, in: Newman/Hill (eds.), The Leading Arbitrators‘ Guide to International Arbitration, New York, 2004, at 307, 331

Determining the Extent of Discovery and Dealing with Requests for Discovery: Perspectives from the Common Law



III. The Arbitrator‘s Role in Resolving Discovery Disputes



6. Privilege



Although arbitral rules generally do not explicitly contemplate evidentiary privileges, most national legal systems recognize some privileges. Indeed, certain privileges are so well established that they may be considered general principles of law or tansnational public policy.78 As such, arbitrators cannot ignore well-founded, good-faith evidentiary privileges without frustrating the parties‘ justified expectations.79 Moreover, courts likely are more inclined to set aside awards where arbitrators have refused to recognize and protect privileges than they are in circumstances where arbitrators have excluded evidence on the basis of privilege.80 As a general principle, the less widely recognized the privilege, and the greater the party‘s need for the allegedly privileged evidence, the more inclined arbitrators will be to order the production of that evidence.

78See Mosk & Ginsburg, supra note 76, at 378-81.
79See id. at 382.
80See id. at 376.

Referring Principles
Trans-Lex Principle: XII.5 - Settlement Privilege
A project of CENTRAL, University of Cologne.