Privilege In International Commercial Arbitration

In the field of international commercial arbitration,when there is the dispute arise between the parties,the evidence always play a crucial role of finding the case truth and safeguarding parties lawful rights.As an important exception of evidence regulations,privilege entitles limited people to deny the evidence production.In international commercial arbitration,the "lawyer-client privilege" is one of the most common privilege,it works through ensuring that the open and honest speech or communication between the lawyer and the parties will not be presented as evidence in the judicial or arbitral proceedings,thereby ensuring a frank exchange between the two parties.With the continuous development of international commercial arbitration,there emerges a process by which the third party financially contributes one party in a lawsuit or an arbitration procedure,while the third party regards the case as a means of investment or financial risk avoidance.It is called by scholars as Third Party Litigation Funding or Third Party Arbitration Funding.Third party arbitration funding gradually gained legal status and at the same time becoming increasingly popular in international arbitration,but we cannot ignore the legal problems or some impacts that the Third Party Arbitration Funding has caused.Under this background,it is extremely significant to analyze the impacts from third party arbitration funding to privilege in the field of international commercial arbitration,and how to find the appropriate solutions under the circumstance.Furthermore to make several suggestions to construct the privilege in China legal system.This thesis can be divided into four parts:Chapter one focus on the basic introduction on privilege in the field of international commercial arbitration.Through analyzing the main arbitration acts on both Civil Law and Common Law worlds,as well as the arbitration regulations from some popular arbitration institutions,the thesis get a proof is that privilege is recognized among most of the jurisdictions.Chapter two introduces the definition and the originals of third party funding,and the impacts to the privilege,mainly reflects on the waive of the privilege and legal application of privilege.Chapter three is the most important part of the thesis.It provides the analysis of how to settle the two problems that Chapter two raised.This chapter first analyzes the circumstances that the privilege are waived and make it clear,with the aim of eliminating the uncertainty of third party funding as much as possible;secondly,this chapter also identifying the physical or procedural nature of the privilege,in order to seek a suitable legal application under international commercial arbitration.Chapter four focus on the privilege issues in China.Through the analysis of the status quo of China's legislation on privilege,we conclude that it is essentially different among China's existing lawyer confidentiality system and privilege.Meanwhile,it is obvious that the research on the construction of the system of privilege by domestic scholars did not play an enough supporting role in theory,therefore,we suggest to retain the status quo,and avoid to make law transplant.