On International Commercial Arbitration In The Attorney - Client Privilege "system

This article elaborates the characteristics of attorney-clientprivilege in international commercial arbitration, as well as the existingissues and the corresponding solutions. It proposes authentically toconstruct attorney-client privilege in our international commercialarbitration according to our country actual situation.The full text includes four parts, which adopt the comparison test,the method of case analysis to elaborate the existing theoreticalfoundation and the characteristics of attorney-client privilege ininternational commercial arbitration. And the article emphasizes onanalyzing and studying its existing issues and the solutions, based onthis, it proposes the conception of construction of the attorney-clientprivilege in our international commercial arbitration area.The first part is to discuss of the overall conception ofattorney-client privilege in international commercial arbitration. First ofall, this part mainly studies the connotation and the origin of "theprivilege" and "attorney-client privilege". Secondly, this partsummarizes the remarkable characteristics of attorney-client privilege ininternational commercial arbitration through analyzing the differencebetween arbitration system and the lawsuit system by using comparativeanalysis method. Hence, it has promulgated the importance ofattorney-client privilege in international commercial arbitration.The second and third parts investigate the existing issues ofattorney-client privilege in international commercial arbitration bases onthe international background, and propose the comprehensive suggestionthrough the advantages analysis of solutions in international practice, inorder to benefit the consummation of attorney-client privilege ininternational commercial arbitration.Firstly, there is no unified international rules, and no arbitrationrules proposed by the international arbitration institution to standard theapplication of attorney-client privilege in the present international commercial arbitration realm as well, They can make differentinferences to apply the privilege rules, which often creates confusion inthe international commercial arbitration practice, when the attorney, theclient and the arbitrator who respectively come from different countryand influenced by the law which control the contract, the law whichcontrol the arbitration procedure and the local law. In the second part,thereby, this article has thoroughly analyzed the existing issues ofattorney-client privilege through the case analysis method. Through thecomparative analysis method, this part proves the reason which will leadto the issues from the aspects of the difference between two legalsystems, as well as the flaw of international commercial arbitrationprivilege rules, thus has provided the prerequisite for the issues solution.Secondly, according to the reason of existing issues, the solutionhas been analyzed in the third part. At present, in the international theoryand practice, it mainly has contractual solution, choice of law solution,and solution of applying the laws of both parties to achieve a commondenominator, through the analysis of advantages or disadvantages ofthese methods, the third part suggests to follow the path alreadyestablished by the successful development of the IBA's Rules ofEvidence, and to formulates a set of principles for international attorney,and clear about the nature and the scope of attorney-client privilege ininternational commercial arbitration. At the same time, in order toapproximately satisfy the predictability of attorney and client to theprivilege rule, this article suggested using "the most favored privilege"approach, thus both parties would be accorded the same level ofprotection of their confidential information.The fourth part is to elaborate this topic bases on our countrybackground. China has not established attorney-client privilege,however, the popular international commercial arbitration places in theworld, such as London, Singapore, Hong Kong, all basically followedwith the procedure of the Common Law system, the privilege rules areapplied widely in these countries, If the privilege rule is not established in our international commercial arbitration, or the privilege system ideais not propagandized, there will affect the international status of ourcountry international commercial arbitration. Therefore the writersuggests introducing attorney-client privilege into our evidence systemand proves the necessity and the feasibility of introduction. Finally,according to the profits from the procedure in the Common Law systemand Continental Law system, this article put forward specificsuggestions, and thus is advantageous to the development of ourinternational commercial arbitration.In the conclusion, on the one hand, the writer pointed out that weshould take a great attention to the existing issues of attorney-clientprivilege in the international commercial arbitration, and shouldconsider to take account to the suggestions which the writer proposed;On the other hand, the writer pointed out that we should suitablyintroduce attorney-client privilege system into our evidence system, thusleads to the reconcile of our international commercial arbitration rulesand the international rules, and to promote the prosperous developmentof our international commercial arbitration.