According to Claimants, the disputed items consist of [REDACTED]
According to Respondent, the non-privileged portions of the documents should be disclosed, notwithstanding any general confidentiality designations on the documents (Resp. 18.07.18).
The Tribunal granted Respondent's Request No. 35 (see PO No. 10, Annex B). Claimants then raised legal privilege as a defence in their Supplemental Privilege Log of 22 June 2018.
“The Tribunal notes that it is undisputed that a requested document which is the subject of legal privilege shall be excluded from production. Indeed, pursuant to Article 9(2)(b) of the IBA Rules, the Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any Document for “legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable”.” (PO No. 10, para. 44).
“The Tribunal further notes that it is undisputed that written work product of counsel and direct communications with counsel are subject to attorney-client privilege. With respect to whether other documents are subject to attorney-client privilege or other legal privilege shall be for the Tribunal to decide in line with the aforementioned principles (see above para. 45 [referring to Article 9(3) of the IBA Rules]).” (PO No. 10, para. 46).
“Therefore, where a document contains statements subject to legal privilege, such document should be disclosed but with the relevant statements redacted (Article 9(2)(b) of the IBA Rules). […].” (PO No. 12, para. 25).
“This issue is independent from the question of whether this information should be communicated to the public. Such decision has to be made in accordance with PO 3.” (PO No. 12, para. 27).
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