INTRODUCTION

In the previous chapters, I noted that the courts of the examined states may normally order a foreign litigant to disclose a document on the basis of their state’s procedural laws. This means that these courts may even grant such an order when the document is located outside the forum state, or if a litigant must disclose a document in violation of a foreign state’s law. Whilst I have also illustrated that minor or major differences do exist between the different states’ rules on legal privilege, it is clear that information that is privileged according to a foreign state’s laws can become discoverable during provisional or main proceedings that take place before another state’s court. This is due to the fact that most courts of the examined legal systems seem to apply the lex fori conditio registrii conflict rule. Accordingly, it is presumed that these courts only apply their state’s legal privilege rules if the lawyer with whom the communications were shared has been admitted to the bar of a foreign state. Consequently, most of the examined courts seem not to be willing to apply a foreign state’s privilege laws on the basis of an alternative conflict rule instead. This restrictive attitude may become problematic if the rules on legal privilege of the state in which the auxiliary or forum court is located differ from that of a foreign state.

Accordingly, during transnational civil proceedings four different situations can in my opinion arise, in which the level of protection that is granted by a legal privilege rule of the addressed court’s state is either comparable to or diff ers from the level of protection that is given by the privilege rule of a foreign state. These situations are illustrated in the table above. Considering that the level of protection that is granted by the different states’ rules is equal in situations C and D, there is in my view no problem here. In such cases, the foreign litigant will expect a certain level of privilege protection based on the foreign state’s privilege rules, the application of which he relies on.