Overview

The issues raised by disclosure obligations and legal privilege are of paramount importance both for international and national companies operating within the Asia Pacific region. The complexity and inconsistencies between one jurisdiction and another can create many pitfalls for the unwary. On the other hand, tactical advantages can be gained by choosing the appropriate jurisdiction by reference to disclosure requirements and the recognition afforded to legal privilege.

Some jurisdictions require mutual disclosure in judicial proceedings but recognise the concept of legal privilege as an exception to that system. Other jurisdictions do not require mutual disclosure and instead, operate a limited system of specific disclosure to the court. Consequently, such systems may give less recognition to the concept of legal privilege.

Most common law based jurisdictions regard legal privilege as a substantive right, whereas, civil law jurisdictions merely regard it as a procedural matter. These differing approaches can present serious problems for international disputes. A party to an arbitration may feel particularly aggrieved at having to disclose what would otherwise be privileged communications in its national courts. Not all jurisdictions recognise that in-house lawyers are entitled to claim legal privilege either in judicial or regulatory proceedings. In general, only common law based jurisdictions extend the privilege to in-house lawyers and even some of those jurisdictions will require in-house counsel to demonstrate a degree of independence in order to obtain protection.

Other jurisdictions only afford the protection of legal privilege to domestically qualified lawyers in private practice and to documents within the actual possession of a lawyer.

The disclosure of otherwise privileged documents in one jurisdiction, whether in judicial or regulatory proceedings, may result in the waiver of legal privilege in another. Waiver of privilege in one document may result in waiver of privilege in connected or other contextual documents. In some, but again not all, jurisdictions it may be possible to claim legal privilege in respect of documents generated in corporate compliance inquiries or arising from regulatory investigations. In other jurisdictions, the findings of such inquiries or investigations may have to be disclosed.

Often in order to reach a settlement with prosecution or regulatory authorities, otherwise privileged documents may have to be disclosed. That exercise may then expose individual officers to prosecution or civil proceedings leading in turn to serious and invidious conflicts of interest for those officers.

This guide is intended to provide an overview, within an Asia Pacific context, of disclosure obligations both in judicial and regulatory proceedings, the concept and applicability of legal privilege and the protection afforded to settlement negotiations.

To read this guide click ‘View Briefing’