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*Devashish Godbole Introduction: The issue of what constitutes Privilege in the case of International Arbitrations is a hotly contested topic and has a lot of diametrically opposite views. It has been observed that there is no concrete law for privilege, both for attorney-client, as well as documents. In addition to the above, there also arises the issue of admissibility and privilege of wrongfully or illegally obtained documents. These issues mostly come up in litigation, where the court decides the issue on the basis of the applicable domestic law. But when we are dealing with a multi-jurisdictional arbitration, between two Multi-National Corporations (MNCs), regarding communication that took place between parties in multiple jurisdictions, with individuals and lawyers from multiple countries, then we enter the grey area of law, without any concrete answer. This issue is compounded as most leading arbitration rules like LCIA, ICC, WIPO etc. do not provide guidance on the what constitutes privileged information and documents. Furthermore, the parties while drafting their arbitration clauses, rarely mention these issues, as it is an assumption that either of the laws provided therein would take care of this issue.[i] This article would discuss in brief what laws are applicable to determining the issue of privilege, while taking evidence in International Arbitration, and mentioning the various challenges that this procedure faces. The article would also analyse contemporary rules and procedures that seek to provide guidance to the tribunals on these issues. Law applicable to International Arbitrations: Due to lack of concrete literature on this topic, Arbitrators often have to decide upon the same and seek a balance between over-exposure of unnecessary documents and ensuring that all the relevant documents come to the fore for the final determination of the facts of the case at hand. The tribunal has to find a workable solution to the said issue in every case, on an individual basis, rather than following a set precedent, whilst ensuring that the award should not stumble upon the issue of ‘public policy’. The whole issue of ‘public policy’ drags the discussion in a grey area. And it becomes particularly complicated when we venture in civil law countries, or Far Eastern countries like China, where the law on privilege is totally different than what is generally observed in common law countries. Take a hypothetical example of an arbitration seated in China, where one of the parties is based out of China, and other out of a common law country. The dispute arose out of an allegation of fraud by the Common Law based party; that the Chinese party was responsible for fudging of certain documents, and the parties individually or together submitted these documents for verification. On the question of whether it would be a privileged document, qua the Claimants, it is to be noted that if Common Law were to apply, these documents would be privileged[ii], as they would have been procured for the purposes of impending litigation or dispute. But if the Chinese law,[iii] which does not recognize common law were to apply, the documents would not have been privileged. Another example can be the rule of disclosure or evidence; where the lawyer-client privilege is generally considered as a rule in common law countries, but is treated as a professional conduct duty or “professional secret” in civil law countries.[iv] Then there is the question of treatment of in-house counsels as lawyers, how settlement and without prejudice talks are viewed etc. which differ from one jurisdiction to the other and have no set universal rules. The determination of allowing or disallowing production of documents boils down to what the tribunal believes to be ‘necessary and justified’ for the purposes of granting or disallowing privilege.[v] The nationality and legal background of the arbitrators is also an important issue, as is their inherent conception of right and wrong, and procedure are engrained in their respective traditions.[vi] Disclosure in International Arbitration: As a general rule, the disclosure phase in an international arbitration tends to be much shorter and succinct. Unless the parties agree otherwise, the rules of civil procedure governing litigation in the local courts, which is, neither the applicable substantive law (lex causae) nor of the seat of the arbitration (lex arbitri), apply to international arbitration.[vii] Generally, disclosure requests in arbitration proceedings must be sufficiently detailed to identify specific (types of) documents and must provide reasons as to why the information requested is relevant to the dispute, and material to its outcome. This disclosure standard is much more restrictive than the “relevancy” test applied by U.S. courts under Rule 26[viii] or similar state statutes, which do not require a separate showing that the requested information is material to the outcome of the dispute. Further, the practice of depositions, interrogatories, and requests for admission is uncommon in international arbitral proceedings in the U.S. and elsewhere.[ix] Renowned arbitrator Gabrielle Kaufman Kohler in one of her papers,[x] has stated that some national legislations like the English Arbitration Act, 1996, specifically S. 34, provides that an arbitral tribunal sitting in England has the power to order the parties to produce documents. But other national legislations are silent on this topic. Being a procedural matter, the power of the arbitrators to order document production is governed by the rules on procedure. According to the general principle of party autonomy, the rules on procedure are determined by the parties\’ agreement. The parties can agree procedure either directly or, which is more frequent, indirectly by reference to a set of arbitration rules. Failing an agreement by the parties, be it direct or indirect, the arbitrators have the power to set the procedural rules and thus decide whether and under which standards they may order document discovery. Practice does confirm that arbitrators have no hesitation in assuming the power to order document production. Practice also shows that they do so whether or not such power is expressly granted by the competent national legislation, the applicable arbitration rules, or the parties\’ agreement. Where there is no express power, they regard it

Shruti Vats[1] INTRODUCTION In light of the increasing complexity of commercial contracts and prevalence of multi-party and multi-contract arrangements in international business transactions, SIAC issued a proposal on Cross Institution Consolidation Protocol read with its 2016 SIAC Rules, in 2017. Multi-party and multi-contract disputes are not uncommon in international arbitration and also arise frequently in commercial litigation. According to the ICC’s statistics for 2016, no less than half of the arbitration requests filed with the ICC involved three or more parties, with 20% of arbitrations involving five parties or more.[2] Similarly, the figures from SIAC’s Annual Report 2019 note that 179 consolidation applications have been received by SIAC since the introduction of consolidation provisions in the SIAC Rules. Consolidation is perhaps more important in arbitration than in litigation because the principles of res judicata and preclusion are not universally recognized in arbitration. While the rules of major arbitration institutions have provisions for the consolidation of multi-party and multi-contract proceedings pending before their own institutions, the field remains unkempt when it comes to arbitration proceedings spanning multiple institutions. Such Institutions have not yet introduced consolidation of arbitrations that are subject to rules of different institutions. If the contracts contain references to two different institutional rules of arbitration (for example, where the subject matters of the contracts are different and disputes arising out of them would benefit from the expertise of specialist institutions), the necessary result, within the present framework, is that two different arbitrations would need to be conducted under different rules,[3] possibly leading to conflicting decisions. This comes after the parties have spent double the resources and time. As explained further below, SIAC’s proposal addresses this by dealing with issues of consolidation of pending arbitrations as well as by providing for the possibility of commencing a single proceeding in relation to multiple contracts that refer to different institutional arbitration rules. THE PROTOCOL[4] The protocol succinctly lays down the key discussion points and their recommended solutions, with possible alternatives. Put simply, the proposal addresses the following two issues: whether and how a consolidation application should be admitted (along with ancillary administrative issues); and if the application is to be admitted, which Tribunal should decide upon the consolidated arbitration. In assessing SIAC’s proposal, the key issue is not so much the substantive nature of the initiative or the proposed mechanics for cross-institution consolidation, but rather the question of the administrative ‘sovereignty’ of the international arbitration institutions.[5] In other words, the key issue is which institution should be given primacy over the other.  SIAC’s proposal focuses on the objectives of arbitration – reducing time and costs involved in traditional methods of dispute resolution, and also on easy enforceability of the final decision. These objectives which make arbitration attractive as a method of dispute resolution are often neglected, as arbitration is, arguably, the only alternative with trans-national enforceability. ISSUES IN MULTI-CONTRACT AND MULTI-PARTY DISPUTES AND THE EXTENT TO WHICH SIAC’S PROPOSAL MITIGATES THESE WEAKNESSES Party Autonomy (consensual nature of arbitration agreement and concept of privity of contract): The introduction of claims or parties through consolidation or joinder serves the goal of finality of decision, yet is often not an option because the contractual nature of arbitration bars any party, in this case the original parties, from being forced to submit to a proceeding to which they did not agree originally in the contract. This problem may be solved by all parties agreeing in advance upon the consolidation provision through the institutional rules, in turn containing the protocol. The Protocol, in this way, will be subject to the consent of the parties automatically, once the parties agree on an institution and its rules. However, for an initial period i.e. transition period, (not specified exactly in the protocol) opt-in mechanism will apply where parties will have to specifically opt for such a consolidation protocol so as not to be caught off guard in the later proceedings. The protocol does not violate the principle of party autonomy as it is only prospectively applicable i.e. the protocol will have no applicability to agreements dated prior to the date of the protocol. Appointment of Arbitrators: The consensual basis of arbitration is based on the principle of equality amongst the parties. Introduction of multiple parties to arbitration either as claimant or respondent can complicate compliance with this principle, particularly in the process of the selection of arbitrators. In most jurisdictions, especially in states party to the New York Convention, 1958, awards are vulnerable to challenge if all parties have not had an equal right to participate in the appointment of the tribunal[6] This problem, at present, is ostensibly dealt with by the common institutional arbitral rules by providing for the joint nomination/appointment of arbitrators together by all of the parties of one side (Claimants or Respondents). It does not specifically provide for situations where one side might be represented by more than one party with different claims (against the other side or even the same side).[7]This means that the arbitral rules commonly require that the parties agree to compromise on the expertise, cost etc. of the arbitrator in favour of a common name.  In the light of the above issue, the protocol proposes the formulation of new rules for the consolidated proceedings that can be jointly administered by the institutions. In the alternative, it provides for the selection of one institution on the basis of objective criteria, safeguarding the overwhelming preference for an institution of the parties. Right of party to challenge tribunal’s jurisdiction after the consolidation decision: In a narrow sense, inclusion of new disputes (through a successful consolidation decision) results in the enlargement of the jurisdiction of the arbitral tribunal already formed for the purpose of deciding the first/original dispute. Should such tribunal be automatically deemed fit for the enlarged jurisdiction without having to further obtain the consent of parties? This, however, is not an issue under the protocol as it innovatively establishes a joint committee for consolidation decision which takes into account an already constituted tribunal.

VICTOR ADEGBITE* Covid-19 has affected at least 188 countries and territories of the world and has brought a lot of economic hardship to many individuals and companies. The global pandemic, which has taken a significant toll, by claiming millions of lives, has the entire world buzzing with uncertainty and questions: How long will the pandemic last? What will people’s lives look like once the pandemic is over? The spread of the virus has continued to negatively impact the economy, commercial activities, people and legal matters. It is inarguable that there is a likelihood in increase in international disputes due to the constraints and failure of individuals and parties to meet their contractual obligations due to the pandemic.[i] The post-corona virus world will give rise to a myriad of claims and lawsuits, including some that are likely to transcend state and national borders. As Arbitration is becoming a popular choice in commercial contracts and dispute resolution, those invoking their dispute resolution/arbitration clause may find themselves submitting request for arbitration. This is due to the perceived potential advantages of Alternative to Dispute Resolution (ADR) over judicial proceedings, such as the flexibility and how less costly it is. In times of economic and financial hardship like this, individuals and parties may find it difficult to provide for legal matters arising from the Covid-19 issues. The legal budgets of companies are dwindling due to the disruption of the production and supply caused by the lockdown in some parts of the world. This article focuses on the third-party funding in Arbitration in a post-Covid-19 world. THIRD PARTY FUNDING IN ARBITRATION Third  party funding (TPF)  is when a non-party to a dispute provides all or part of the funding for the legal costs of the dispute to a party in exchange for an agreed return upon the rendering of a favourable decision by the adjudicator, especially where a party is under a financial strain. It was originally designed as a means of assistance for companies or parties which were struggling to sustain their claims in arbitration or litigation. Third party funding involves the formation of a legally enforceable contract between the funder and funded parties, where the funder receive a percentage of the amount recovered if the litigation is successful, commonly in the range of 25-40% percentage of the cut they take, or where it is based on the financial necessity of a party seeking fund to sponsor their meritorious claims. Additionally, the funding party may agree to pay the costs incurred by the opposite party, if the opposite party is under resourced. The funder has the hopes of getting returns once the dispute is settled or the award made. If the case is unsuccessful, the funder loses its investment, receives no success fee and has no recourse against the funded party.  The consideration for the funding agency necessarily includes meritorious claims, pursued by motivated claimants and  a percentage of the compensation-award granted in the arbitration. Cases considered unsuitable for funding are divorce and personal injury cases. Over the years, there has been a marked increase in third party funding. Today, it is commonly adopted in commercial activities, and also State-to-State arbitration, as stated in SA Veolia proprete (Formally SA Onyx) V. Foris AG.[ii] The global community has accepted the process, and the framework for the process is being considered with Singapore and Hong Kong as notable examples. In Nigeria, a recent amendment to the Arbitration and Conciliatory Act via an amended bill,[iii] which grants  the cost of obtaining third party funding to be included in arbitration costs has been welcomed by all, this effectively legalises TPF in arbitration but not litigation in the country. It is common to ensure third party funding is domiciled in the jurisdiction where the arbitration is seated. Some countries have restrictions that forbids third party funding (TPF), for example, under law of champerty and maintenance, which are common law doctrines, to safeguard a party\’s best interests and protect the administration of justice against abuse from non-parties. Maintenance is the improper intermeddling in a lawsuit by a party with no legal interest in it. Champerty is a subspecies of maintenance and arises when a \’maintainer\’ shares in the profits of litigation. These laws are referred to as antique laws, which prohibits the outside financing of litigation and has been abolished in some jurisdictions, such as Massachusetts, and New York in the United States, this is to further aid the development of TPF; as stated in Arkin v Borchard Lines.[iv] THIRD PARTY FUNDING IN A POST-COVID-19 WORLD As the Covid-19 global pandemic has caused the economic sectors of various countries to be paralyzed, third party funding is likely to increase in usage because parties may want to offset some of the risk associated with costly arbitration, particularly if the award made by the tribunal is not favorable to them. Funders also are more likely to fund cases which involves damages, because the same phenomenon that is causing parties to seek out disputes funding is forcing funders to proceed with caution and funding arbitration matters is a high-risk investment. Third party funding in this period will enable companies to invest their money for a better efficiency and growth in their services, by moving legal fees and expenses off their own balance sheets. Third party funding has the potential to ensure that disputing parties has the sufficient resources to meet all legal costs that arise from the arbitration proceedings. Funders in Third party Funding includes, specialised third party funders, insurance companies, investment banks, hedge funds and law firms. There will likely be an influx of cases after this pandemic ends, as many courts have been closed or restricted to limited operations as they seek to implement new technologies to facilitate virtual hearings. International arbitration too has been impacted, however, as a flexible and dynamic procedure, where technology and procedural innovations have been in use by some for many years, it has been in a good position to respond to the new ways of