Show Summary Details
This content is available to you

An International Law of Privileges

Michelle T Grando

Keywords: Privileges; choice of law; arbitration; international dispute resolution; public international law

The statutes and rules governing proceedings before the International Court of Justice, World Trade Organization panels, and International Center for the Settlement of Investment Disputes tribunals are silent on the question of evidentiary privileges. Moreover, there is no established international law of procedure and evidence to which the disputing parties and tribunals can refer. Yet questions regarding privileges have been presented to them, and as the number of cases brought before them increases, such questions are likely to become even more common. How should international tribunals decide claims of privilege presented to them? This article will argue that there are two approaches to answering this question: (i) a choice of law approach, by which the law of a domestic jurisdiction is selected and applied; and (ii) an approach which would lead to the development of international rules of privilege. The latter approach is favoured because privileges reflect the public policy of the state that creates them and international tribunals do not have a mandate to enforce the public policies of any one state. On the contrary, their mandate is to enforce the policies of the international community as reflected in international law. This is not to say that there is nothing to be learned from domestic rules of privilege. Accordingly, the article will explore how domestic rules can help in establishing an international law of privileges. It will examine rules and policy rationales adopted by a few representative jurisdictions for the protection of types of information that are likely to be relevant for the adjudication of disputes brought before international tribunals, such as classified government information, communications involving in-house counsel and government lawyers, and proprietary information.

Full Text

The full text of this journal article is available as a pdf