Does attorney-client privilege apply in an arbitration seated in Israel?

Israeli law separates rules of admissibility, which an arbitrator may set aside, from substantive protections that exist regardless of the forum. Section 90 of the Chamber of Advocates Law makes material exchanged between a lawyer and a client for professional purposes privileged, and the lawyer must assert it rather than decide whether to give it up. The same reasoning applies to the physician, psychologist and clergy privileges in the Evidence Ordinance. Section 13 of the Arbitration Law lets a tribunal apply to the District Court to compel a witness or documents, and the court applies ordinary privilege rules to that application. Where a party puts its own legal advice in issue, for example by pleading that it relied on counsel, a tribunal may treat privilege as waived on that subject.

Foreign parties should note that Israeli privilege is narrower than the United States work-product doctrine, and that material prepared by a foreign in-house team is not automatically protected on the same footing. The practical answer is to settle the privilege regime expressly in procedural order number one or in the terms of reference, most commonly by adopting the IBA Rules on the Taking of Evidence, which let the tribunal exclude documents for legal impediment or privilege. Our guide to evidence and discovery in Israeli arbitration sets out how production requests are handled. Raise the objection when the request is made, because a party that produces first and objects later is usually treated as having waived.

From the full guide: Evidence and Discovery in Israeli Arbitration: A Practical Guide for Foreign Parties

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