Jun 25, 2021, 12:00 PM

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In international litigation and arbitration, there can be a lack of certainty as to the applicable rules of privilege, and how these rules will be applied in certain situations. This creates a potential for parties to be surprised with the forced disclosure of documents which they had believed to be privileged, sometimes in violation of deeply-held expectations regarding the relationship between lawyer and client.

In this CLE, we will cut through the complexity to provide a survey of how rules of privilege vary around the world, explain how courts and arbitral tribunals select the applicable rules of privilege in international disputes, and provide practical guidance to parties for managing privilege issues in international disputes.

We will address the key types of privilege in international disputes and highlight how they vary from one national jurisdiction to another. We will explain the issues that in-house counsel need to know, including:

· The differing scope of privilege protection that various jurisdictions provide to communications between a lawyer and client;

· Which jurisdictions extend privilege to documents prepared in anticipation of litigation or arbitration;

· Other key types of privilege, such as sovereign State secrets privilege and joint or common interest privilege; and,

· How privilege can be lost and steps that businesses can take to avoid this.

Speaker Bio:

Arif H. Ali

Arif Hyder Ali is the co-chair of Dechert LLP’s International Arbitration practice, which consists of some 50 partners and associates across the firm’s 26 offices. He splits his time between the firm’s Washington, D.C. and London offices. He is also an Adjunct Professor of Law at Georgetown University, where he teaches international commercial and investment arbitration. From 2007 to 2012 he was an Honorary Lecturer and Global Faculty Member of the University of Dundee’s Centre for Energy, Mining and Petroleum Law and Policy. In 2001, he was decorated with the Order of Bahrain (II) for his role in the resolution of Bahrain’s maritime and territorial boundary dispute with Qatar before the International Court of Justice.

Mr. Ali has served as lead trial counsel in international investment, commercial and construction arbitrations under many of the major international and regional arbitral regimes and covering a broad range of industries and economic activity, including foreign direct investment; privatization; the construction, operation and commercialization of thermal, nuclear, and hydro power plants; oil and gas pipeline construction and concession-related matters; mining concessions; gas pricing disputes; natural resource exploitation projects and contracts; the development and operation of tourism and hospitality projects; project finance and development agreements; contract stabilization and renegotiation issues; patents and trademarks; Internet governance and top-level domains; and information technology-related disputes. He has represented parties from the United States, Canada, Central and South America, Europe, the Middle East, Africa, and across Asia.

Mr. Ali is consistently rated as one of the world’s leading international arbitration and public international law specialists by Chambers and Partners, Legal 500, Global Arbitration Review, Who’s Who in American Law, Who’s Who in Public International Law, The Legal Media Group’s Guide to the World’s Experts in Commercial Arbitration, Lawdragon, PLC Which Lawyer?, The International Who’s Who of Business Lawyers, Washington Super Lawyers, The International Who’s Who of Commercial Arbitration Lawyers and The Best Lawyers in America.

Erica Franzetti

Érica Franzetti is a partner in Dechert LLP’s International Arbitration practice, and concentrates her practice on international commercial and investor-state arbitration matters across multiple industry sectors (e.g. energy and natural resources, life sciences, financial services, hospitality and information technology) and jurisdictions (e.g. the U.S., Brazil, Colombia, Argentina, Chile, Peru, Croatia, Hungary and the Philippines). Ms. Franzetti has extensive experience advising clients in cases involving multiple procedural rules, including the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR) and the United Nations Commission on International Trade Law (UNCITRAL) arbitral rules.

Ms. Franzetti has consistently received professional recognition. Chambers Latin America nominated her as an “Associate to Watch” 2013-2015. She has been named a part of Arbitration Future Leaders by Who’s Who Legal: Arbitration 2018-2021, and as a “Rising Star” for commercial arbitration by Euromoney/Legal Media Group in its Expert Guides series 2018. The Legal 500 USA 2019 qualified her as a “superstar” who stands out for her “extremely well-versed” approach in high-stakes international disputes. The Legal 500 Latin America 2019 notes her as “extremely effective during cross examination and highly persuasive giving written and oral arguments.” More recently, Chambers USA 2020 ranked her as “up and coming” and Chambers Global 2021 ranked her as “up and coming” and “Foreign Expert for Brazil.”

Ms. Franzetti also serves as arbitrator on international commercial arbitrations and teaches a course in investor-state arbitration as an adjunct professor at Georgetown University Law Center.

Linda Goldstein

Linda C. Goldstein is an experienced trial partner at Dechert LLP who focuses her practice on securities law claims and other complex disputes. She is ranked by Chambers, which cites her “excellent reputation,” for her “capabilities in a broad range of commercial litigation.” In 2020, she was named a “Litigator of the Week” by The American Lawyer and she has been recognized as one of “The 25 Most Influential Women in Securities Law” by Law360.

Ms. Goldstein represents clients in a broad range of securities and corporate matters, including claims brought by institutional investors, class actions, major customer arbitrations and regulatory investigations. She also handles other complex civil and commercial litigation matters on behalf of foreign and domestic clients.

Best Lawyers and the Legal 500 US both recognize Ms. Goldstein as a leading securities litigator. She has also been recognized by Benchmark Litigation which has described her as “an exceptionally smart and diligent lawyer” who is “usually one step ahead of everyone else in the room.”

Henry DeFriez

Henry Defriez is an associate at Dechert LLP, who focuses his practice on international commercial and investor-state arbitrations. He has handled cases before the Singapore International Arbitration Centre (SIAC), the International Chamber of Commerce (ICC), the Hong Kong International Arbitration Centre (HKIAC), the International Centre for Settlement of Investment Disputes (ICSID), the London Centre of International Arbitration (LCIA) and the Court of Arbitration for Sport (CAS), as well as under the rules of the United Nations Commission on International Trade Law (UNCITRAL).

Mr. Defriez has advised parties in disputes in Asia, Europe, the Middle East, Africa, North America, and South America, which have arisen out of the oil & gas, mining, electricity, construction, healthcare, financial, and telecommunications sectors. The laws considered and applied in these disputes include those of Argentina, Belgium, China, Colombia, England and Wales, France, India, Indonesia, Japan, Korea, Kuwait, Luxembourg, Nigeria, the Netherlands, Panama, Qatar, Russia, Singapore, Spain, Switzerland, Turkey, several states of the United States, the UAE, Venezuela, and Vietnam.

Rose Marie Wong

Rose Marie Wong is an associate at Dechert, who focuses her practice on international arbitration, international litigation, and litigation matters. Ms. Wong has experience handling commercial and investor-state disputes under the ICSID, ICDR, UNCITRAL, and CPR Rules, and representing clients in U.S. courts in connection with their investor-state disputes. She also has extensive experience representing clients in the information technology sector, specifically in regards to the Internet Corporation for Assigned Names and Numbers (ICANN) and its governance of the domain name industry.