Admissibility Challenges and Forum Preclusion in Cross-Border M&A Transactions
Enforcing post-closing M&A claims requires aligning target corporate seat laws, arbitral evidence rules, and statutory data export limits before filing.
Legal Professional Privilege
Meaning
Legal doctrines protect the confidentiality of communications between legal counsel and their clients, preventing their disclosure in court or arbitration. Legal professional privilege ensures that a company can seek honest legal advice without fear that the communication will be used against them in a future dispute. This protection is a fundamental aspect of the right to legal representation in most jurisdictions.
Protection Scope
The privilege applies to communications made for the dominant purpose of giving or receiving legal advice. Legal professional privilege also covers documents created for the purpose of existing or contemplated litigation. It does not apply to purely commercial or administrative advice, even if that advice is provided by a person with a law degree.
Waiver Risk
The protection is lost if the confidential information is shared with a third party or disclosed in a public forum. If a company accidentally produces a privileged document during the discovery phase, they must act immediately to reclaim it and assert the legal professional privilege. A failure to maintain strict control over these documents can lead to a total loss of the protection for all related communications.
Evidentiary Shield
In an arbitration, the tribunal must decide which national law governs the application of this doctrine. This is complex when the parties, their lawyers and the seat of arbitration are all in different countries. The shield provided by legal professional privilege is often the only way to protect a sensitive internal investigation from being used as evidence by a counterparty.