Legal Privilege Disputes in International Arbitration in Denmark: A Practical Introduction

Abstract

Few things in life are certain, but those involved in international arbitration can, with virtual certainty, expect that questions surrounding legal privilege, when they arise, will be extremely difficult to answer. The challenges that questions of legal privilege present in international arbitration are so marked that the following maxim has been applied to the issue: ‘the only thing that is clear is that nothing is clear in this area’.
The absence of clear answers is, in part, a result of varying interpretations of legal privilege across jurisdictions and legal traditions. In particular, there are considerable differences between how legal privilege is understood in common law, which has recognised and developed the concept of privilege from the seventeenth century onwards, and civil law, which often traditionally does not explicitly recognise the concept of privilege but can provide comparable protections through other legal mechanisms. A marked example of this is Denmark, a civil law jurisdiction, where it is often said that there simply is no general concept of ‘legal privilege’ but where protections analogous to legal privilege can be found in certain statutory provisions.