Rightly or wrongly, lawyers in England expect their confidential advice to clients to be privileged and immune from disclosure. They expect arbitrations to be confidential (an advantage over litigation where matters become public record) and clients have similar expectations. As corporations expand globally, they face greater challenges, complexities and risks. Cross-border disputes and regulatory investigations almost inevitably involve more than one legal system and parties, lawyers and arbitrators, judges or regulators from diverse legal, commercial and cultural backgrounds. What does this mean for expectations of confidentiality in international disputes where very different, often ill-defined and sometimes contradictory notions of confidentiality or privilege interact?
The pressures of increased corporate governance, new whistleblowing requirements (for example, under the Proceeds of Crime Act 2002) and new antitrust and regulatory rules, make companies constantly under scrutiny by governance authorities, prosecutors, Financial Services Authority/Securities Exchange Commission investigators as well as civil litigants. For many large organisations, disputes and lawsuits are today simply a fact of life.
