Research On Privilege In The International Commercial Arbitration

International arbitration has been rapidly developing the preferred way to settle international commercial disputes due to its flexibility and convenience.As an out-oflitigation dispute settlement mechanism,international commercial arbitration aims to settle disputes,and the proper settlement of disputes is based on the objective dispute facts disclosed by evidence.Nevertheless,the privilege is not conducive to the investigation of the truth,and it is an exception to the system of evidence disclosure.It is a legal exemption so that the obligee will not bear the adverse consequences for refusing to perform the obligation to testify.At present,in international commercial arbitration,privilege is a lasting problem for parties,lawyers and arbitrators.At present,in international commercial arbitration,privilege,as a problem,has been perplexing parties,lawyers,and arbitrators.in international commercial arbitration,privilege is a lasting problem for parties,lawyers and arbitrators.The privilege in international commercial arbitration also originates form the adversarial litigation mode of the common law system,and the legitimacy of its existence lies in that the social value of hiding some evidence has greater value than finding out the facts of the case.As in litigation,the parties in international commercial arbitration also have the obligation to produce or disclose evidence,which is a necessary prerequisite for the existence of privilege in international commercial arbitration.The privilege shows the legitimacy of maintaining procedural justice and reflecting the high efficiency of arbitration.Privilege shows a complex system structure in the field of domestic law,but only the following four types of concessions are involved in international commercial arbitration: legal profession privilege,public interest privilege,without prejudice privilege and trade secret privilege.The claim of privilege may appear in all the procedures of international commercial arbitration,from the production of pre-trial documents to the enforcement of the arbitration awards.The most important problem of privilege in international commercial arbitration is the application of law.Due to the disputes over the nature of the privilege and the differences in the domestic laws of various countries,coupled with the lack of clear and unified rules on the privilege in the domain of international commercial arbitration,it is difficult to determine the applicable law of the privilege at present.In international commercial arbitration,the arbitration tribunal should follow the principle of autonomy of will when determining the laws or rules applicable to the privilege,but if the parties do not choose the law,it may be decided at the discretion of the arbitration tribunal.In practice,the methods commonly used by the arbitration tribunal include “the principle of closest connection”and “the most favorable privilege”.In addition,as the International Bar Association rules of Forensics have developed into a generally accepted standard in arbitration proceedings,they can also be used as the best guideline.However,the problem of privilege in international commercial arbitration is also shown in two aspects: the determination of privilege and the abuse of rights.In the procedure of determining the privilege,the problems are shown in that the format and content of the privilege log are too flexible,and the arbitration tribunal can not be the subject of examination of the evidence.Therefore,it is suggested to refine the privilege log requirements and entrust third-party experts to review;as for the abuse of power,in addition to the adverse presumption of the abuse of power,it is more necessary to improve the norms and restraint mechanism for the use of the privilege.Nowadays,the development of China’s arbitration system is not quite mature.China’s arbitration institutions are chronically dependent on the Rule of Civil Litigation Evidence and lack of specific arbitration evidence rules,and there is no the system of evidence disclosure and privilege.China’s arbitration is derailed from international arbitration.Based on the practice of the concept of privilege and the need of realistic construction,we should begin to establish the system of privilege in international commercial arbitration.When constructing the system of privilege,we should follow the principle of autonomy of will and pay attention to the flexibility requirements of international commercial arbitration.The privilege system is based on the evidence disclosure system,and the necessary constraints should be also set up to guarantee the negative effects of the privilege system.