Charting a path towards harmonisation of privilege rules: a two-stage uniform choice of law rule for privilege in international arbitration

The lack of certainty in the choice of law rule for privilege in international arbitration has led to a desire to devise uniform guidelines and choice of law rules for legal advice privilege, litigation privilege and settlement privilege. Notwithstanding this, there appears to be no conclusive view on the matter. While issue characterisation generally forms the preliminary backdrop for choice of law questions, the divergent views between the common and civil law traditions on the characterisation of privilege arguably leads to further fragmentation of its choice of law rule, and should be dispensed with. This article proposes a two-stage uniform choice of law rule for the three categories of privilege. At the first stage, the parties’ express choice of law for privilege would be given effect. In the absence of such express choice, the law of the seat governs legal advice privilege and litigation privilege, and the law of the main contract governs settlement privilege. This framework achieves party autonomy, equal treatment to parties and parties’ legitimate expectations, certainty and practicability – all of which are conflict-resolving values.