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Document exchange has become an almost inescapable component of international commercial arbitration, irrespective of the legal tradition of the lex arbitri, the lex causae, and the legal systems of the parties' home countries. It is a legal transplant from the practice of litigation in international common law systems, which has developed into a transnational practice in arbitration. Although parties expect the attorney-client privilege, as an exception to the general disclosure obligations, to be protected within this practice, existing rules do not provide guidance on how to do so, and choice of law principles are unwieldy and yield troubling results. This article suggests that a wholesale importation of the broadest national rule of privilege connected to the case would be inconsistent with party expectations relative to the scope of privilege itself, the dimensions of the search for truth, and equal treatment. Rather, the international arbitration practice having evolved around discovery is akin to the results of a legal irritant in the lex arbitri and the practices around privilege should develop similarly. A transnational approach to privilege issues in such a case is best considered a procedural approach or solution: it would begin with the arbitral tribunal requesting submissions from both parties relative to the scope of document exchange and the parties' proposals for application of attorney-client privilege. The main disadvantage of such a transnational approach is that the rules on privilege will not be known to the parties when a document is created or an act of communication takes place. Despite this drawback, the authors submit that this procedural approach is still the best available since it is the only approach that will be able to reconcile the conflict of laws with regard to privilege as it presents itself in the specific arbitration. It is their suggestion that the Privilege Task Force working on an instrument to deal with privilege in international arbitration will provide the arbitral tribunal with significant latitude to resolve the issue in the individual case before it.
Treaty reform has largely focused on refining the various investment protection standards under IIAs to achieve a more appropriate balance between investment protection and preserving the state's right to regulate. This article takes stock of the treaty language used to recalibrate investment protection standards and evaluates their effectiveness in preserving policy space. The article ultimately concludes that greater precision in the various investment protection standards has been effective in preserving regulatory space in some cases, notably in the case of indirect expropriation. By contrast, reform of the fair and equitable treatment may be of limited effectiveness, whereas the reforms of national treatment clauses and most favoured nation clauses have yet to be tested by arbitral treatment. While in principle the latter reforms appear
Consequential damages have been a cornerstone of contract doctrine since the broken crankshaft in Hadley v. Baxendale. And the Hadley rule is one of the most prominent defaults across the common law world. Despite this, provisions barring consequential damages abound in high-impact deals and contract theorists cannot agree on why. One camp argues that these provisions bargain around an imprecise default; the other maintain that these provisions do nothing but undermine the deal. Looking at over 1,300 contracts and speaking to roughly 100 practitioners, we find that real-life consequential damages provisions are often hopelessly ambiguous and that their inclusion in contracts is sometimes more habit than intention.
Journal Article The Digital Markets Act, leaving Europe with an oblique battle order Get access Thomas Lübbig Thomas Lübbig Freshfields Bruckhaus Deringer, Berlin, GermanyHonorarprofessor at Europa-Universität Viadrina, Frankfurt, Germany Corresponding author. Email: thomas.luebbig@freshfields.com Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, jnae025, https://doi.org/10.1093/jaenfo/jnae025 Published: 09 May 2024
