IPBA Guidelines on Privilege and Attorney Secrecy in International Arbitration

The IPBA Guidelines on Privilege and Attorney Secrecy in International Arbitration (the “IPBA Guidelines”) were released at the 5th IPBA Arbitration Day in Osaka on 13 November 2019.

The IPBA Guidelines seek to provide a common perspective bridging both the civil and common law traditions, in order to provide much needed certainty and predictability.

The IPBA Guidelines adopt a 3-step approach:

  1. First, it recognises a set of transnational privileges and attorney secrecy guidelines acceptable to both common and civil law jurisdictions arising from legal advisor-client relationships and settlement negotiations.
  2. Second, it recognises disclosure protected by non-waivable legal impediment or mandatory provision of law.
  3. Third, it allows a party to avail itself of an equal level of protection that is afforded to another party and otherwise not available to that party.

The IPBA Guidelines are the product of more than five years’ effort by the Steering Committee, supported by a Resource Committee, both constituted by practitioners in both common and civil law jurisdictions. In addition, the content of the IPBA Guidelines was also the subject of plenary discussions held at the IPBA Annual Conferences (Auckland, 2017; Manila, 2018 and Singapore, 2019) assisted by the IPBA Dispute Resolution and Arbitration Committee and numerous practitioners from both legal traditions.

The IPBA Guidelines may be adopted as applicable procedure in international arbitration proceedings by agreement between the parties to the proceedings or alternatively be relied on as guidance by the arbitral tribunal.