The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.
Many of the changes concern issues which have been the focus of many of the recent institutional rule changes – reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:
- The adoption of the “international” approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US “discovery” procedures are “generally not appropriate” in an ICDR arbitration (Article 21);
- Provision for joinder and the appointment of a “consolidation arbitrator” to determine whether multiple arbitrations should be consolidated;
- An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
- Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).
On 9 May 2012, over a hundred people attended a seminar at Herbert Smith’s London offices. One of the key topics was the role of privilege in international arbitration which was covered by London partner Chris Parker.
International arbitration differs from court litigation in this regard as the relevant rules of evidence are much more flexible. Approaches taken by arbitral tribunals vary as arbitrators generally possess broad discretion to determine issues of evidence under national laws and institutional rules. They may apply a number of different laws as well as internationally developed principles.
The seminar covered privilege as it relates to court litigation as well as international arbitration and focussed on legal professional privilege under English law. Those dealing with disputes under English law may be interested in Herbert Smith’s new guide to legal professional privilege under English law, comprising:
- A decision tree: intended as a quick reference to help determine which documents can legitimately be withheld on grounds of privilege; and
- Practical tips for maintaining privilege: aimed at minimising the risks of unhelpful material being produced.
The guide is available both as an interactive PDF, with links to more detailed information and articles, and as a hard copy guide. Click here to access the “Handy client guide to privilege” home page on our “litigation notes” blog or contact Christina Southgate if you would like a hard copy.
For more detailed information on privilege in international arbitration in particular, please click here for an article published by Partner Craig Tevendale or contact a member of the Herbert Smith arbitration team.