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Published on June 14th, 2018 | by Olga Papadopoulou

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The Standard of Attorney-Client Privilege In International Arbitration

Kluwer Arbitration Blog

The Standard of Attorney-Client Privilege In International Arbitration: Is The “Most Protective Law” The Right Answer?

Ibrahim Mohamed Nour Shehata (Cairo University & NYU School of Law)/May 18, 2018

The concept of attorney-client privilege is a unique creation of common-law jurisdictions which has influenced all types of legal regimes over the world. Common-law regimes developed such a concept to curb the wide sphere of document production and discovery in litigation. As the name of the concept entails, it was created as a privilege for the client. The rationale was mainly fostering candid communications between clients and their attorneys which would typically improve the quality of legal advice across the spectrum.

On the other hand, civil-law jurisdictions view the issue from a different perspective. As a starting point, discovery is very limited in civil-law countries as the purpose of document production is not the search for the truth. Accordingly, there was no reason to develop such a concept since the scope of document production is rather narrow. However, civil-law countries developed a concept which had similar attributes to attorney-client privilege, namely the attorney’s duty of confidentiality or the legal professional privilege. The rationale was rather similar as well; it was promoting the quality of legal advice. In sum, both concepts are different in their nature, and scope, but share the same purpose which is enhancing the legal representation of clients…

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