Freshfields Lecture.doc

Each other advance copies of the documents to be

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each other advance copies of the documents to be relied upon during the hearings, so as to avoid undue surprise. By contrast, in the United States a practice has developed by which the parties must produce to each other broad categories of dispute-related material, including documents that might help prove the adversary's case. Discovery serves as a vacuum cleaner to hoover up even marginally relevant pieces of paper that might lead to admissible evidence. 29 25 In high stakes international construction arbitration in the United States, one often sees all lead counsel drawn from the active members of the American College of Construction Lawyers. 26 No single appointing institution or set of litigation norms yet commands international confidence. Moreover, notwithstanding the growing corps of world class international arbitrators, tribunals still include individuals whose cultural backgrounds and predispositions may be quite different from that of a party. 27 See e.g ., NCK Organization Ltd v. Bregman , 542 F.2d 128, 133 (2d Cir. 1976). 28 Swiss professional secrecy attaches to Bar membership (the qualification of avocat ), which in turn requires ‘independence’. Lawyers with the status of employee are not usually registered with the cantonal Bar. See generally art. 231 of the Code Pénal, art. 13 of the Loi fédérale sur la libre circulation des avocats (Loi sur les avocats), 23 June 2000 (establishing the obligation of professional secrecy) and art. 29 of the Loi fédérale d'organisation judiciaire (limiting the right to represent clients to practising lawyers and university professors). See generally , Bernard Corboz, ‘Le secret professionnel de l’avocat selon l’article 321 CP’ in (1993) Semaine Judiciaire 77; Albert Stefan Trechsel, Schweizerisches Strafgesetzbuch—Kurzkommentar (2nd edn., Zürich, 1997). For helpful conversations on professional secrecy in Switzerland, thanks are due to my friends Philippe Neyroud, Anne-Véronique Schläpfer and Olivier Wehrli. 29 See Federal Rules of Civil Procedure, Rule 26(b)(1). Sanctions for non-compliance, set forth in Rule 37, include preclusion of introduction of the evidence, striking certain pleadings and even fines for contempt of court. See generally Thomas Mauet, Pretrial (4th edn., 1999); John Beckerman, ‘Confronting Civil Discovery’s Fatal Flaws’ in (2000) 84 Minn. L. Rev . 505; Irwin J. Hausman and Michael C. Harrington, ‘Discovery in Arbitration: Have It Your Way’ in (2002) 7 ADR Currents (March–May) 20. The alleged benefits of such discovery include a better perspective of the strengths and weaknesses in one’s case, leading to settlement, or sharper definition of issues and greater ability to identify an adversary’s 8
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How should the arbitrator choose between these divergent models of privilege and discovery? One approach would be to apply rules in a discriminatory manner, looking to the parties’ national practice and expectations. Accordingly, only communications to the US in-house lawyer would be privileged, and only the US side would be required to produce broad categories of documents. 30
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