Application And Defense Of Privilege In International Investment Arbitration

In international investment arbitration,the evidence disclosure plays an important role for the arbitral tribunal,it can help the arbitral tribunal to find out the truth,understand the facts of the case,and make an arbitration award.As an exception to the discovery of evidence,the evidentiary privilege can not only restrict the scope of discovery,but also protect the important interests and social relations involved in the process of international investment arbitration.However,looking at the current arbitration rules and international conventions,it can be found that in the actual operation of international investment arbitration,there have been many cases that have invoked the exemption system,but there is no arbitration rule that clarifies the discovery of evidence and evidentiary privilege.The detailed provisions only require the arbitral tribunal to consider possible privilege when making an award.Although the arbitration rules give the arbitration tribunal the power to order discovery of evidence,the arbitration rules do not clearly stipulate the discovery and privilege.Therefore,in the practice of international investment arbitration,the specific application of the evidentiary privilege and the defenses raised by the opposing party have become issues that the arbitration tribunal needs to consider carefully.As we all know,the procedures of international investment arbitration are complex and lengthy,which has led to negative effects such as low efficiency of the arbitration tribunal and high arbitration costs.Clarifying the scope and application of privilege and evidence discovery will help simplify the arbitration tribunal’s review of evidence,thereby alleviate these negative effects.Based on the cases involving privilege in international investment arbitration,combined with relevant arbitration rules,this article analyzes the circumstances of the privilege that investors and the host country can claim in international investment arbitration,as well as the defenses against the privilege,and summarizes the current problems and obstacles in the application of privilege,and refer to the privilege in international commercial arbitration,put forward some solutions.In addition to the preface and conclusion,this article is divided into four chapters:Chapter one is an overview of the privilege in international arbitration,introducing the relationship between the discovery of evidence and the privilege,the common types of privilege,and the application of the privilege in the field of arbitration,and analyzing the value of the privilege in the field of international investment arbitration.Chapter two expounds the relevant rules on privilege in international investment arbitration,and combining with bilateral or multilateral investment agreements signed by our country,analyzes the current status of the application of privilege in the field of international investment arbitration.Chapter three is the analysis of the claims and defenses of privilege in international investment arbitration.Through case studies,discuss the claims and defenses of trade secret privilege,attorney-client privilege and public interest privilege,and also summarizes the obstacles and solutions of privilege in international investment arbitration.Chapter four based on the above analysis,discusses the claims of privilege and defenses that the Chinese government and investors can invoke in international investment arbitration,and put forward suggestions on the improvement of relevant domestic legislation.