An ICSID tribunal has largely dismissed an application by the Bangladeshi state respondents for additional document production from the Bermuda-incorporated claimant investors. The tribunal rejected the respondents’ submission that Bangladeshi law governed the claimants’ privilege claims and instead assessed privilege by reference to the parties’ expectations under the IBA Rules on the Taking of Evidence in International Arbitration (“<span class="news-text_medium">IBA Rules</span>”).
Procedural Order No. 1 required the parties to comply with Articles 3 and 9 of the IBA Rules. Article 9.3 allows a tribunal to exclude documents from production on the basis of privilege under the legal or ethical rules that it determines to be applicable. Article 9.4 identifies factors which a tribunal may consider when resolving privilege issues.
The claimants served privilege logs which withheld 700 documents from production. The respondents then sought an order requiring their production.
The respondents argued Bangladeshi law was the proper law to apply on a “closest connection” analysis. Under that law, privilege applied only to communications with lawyers admitted to the Bangladeshi courts. It did not extend to in-house counsel and did not recognise litigation privilege.
The tribunal rejected the proposition that an ICSID tribunal is required to apply the law of the host state. It considered an obligation to identify and apply one particular national law would be inconsistent with the purpose of the IBA Rules, which seek to refine evidential practice by drawing on procedures used across multiple jurisdictions rather than any single legal system.
The tribunal also relied on Article 9.4 of the IBA Rules, which expressly permits consideration of the expectations of the parties and their advisers. It concluded, because Bermuda generally follows English law, the claimants would likely have expected privilege matters to be determined under principles akin to English or US law.
The tribunal found the respondents themselves could not reasonably have expected privilege in an international dispute of this nature to be governed solely by Bangladeshi rules applicable to domestic court proceedings. It also considered that both sides’ advisers would have been familiar with the claimants’ core asserted principles: privilege over documentation prepared to obtain or record legal advice and documents prepared for contemplated litigation; and protection for advice obtained from either in-house or external lawyers.
The tribunal, therefore, held documentation within those categories were properly withheld from production, subject to any waiver or other loss of privilege. The order illustrates the flexibility afforded to tribunals by the IBA Rules when addressing privilege in international arbitration. In this case, the parties’ reasonable expectations and the transnational character of the IBA Rules prevailed over the respondents’ proposed application of host state law.
<span class="news-text_medium">Case:</span> <span class="news-text_italic-underline">Chevron Bangladesh Block Twelve, Ltd. and Chevron Bangladesh Blocks Thirteen and Fourteen, Ltd. v People’s Republic of Bangladesh and Bangladesh Oil Gas and Mineral Corporation</span> (ICSID Case No. ARB/24/39), Procedural Order No. 3, 12 June 2026.
