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Privilege claims in international arbitration

Wednesday, May 30, 2018 @ 8:39 AM | By Alexander Gay and Alexandre Kaufman

In Ontario, as in all other provinces, the legislation regulating international commercial arbitrations is silent on privilege claims. Unlike the domestic Arbitration Act, 1991, where privileged matters are inadmissible, privilege claims under the International Commercial Arbitration Act of Ontario may be subject to foreign laws, which may not recognize the same privileges as in Ontario.

Thus, unless the parties to an arbitration reach agreement on how privilege claims are to be handled, an arbitral tribunals’ power to decide all issues of privilege — including its availability...