Worldwide: Launch Of Asia Pacific Guide To Privilege 2019

Last Updated: 30 July 2019
Article by Peter Godwin and Gareth Thomas
Most Read Contributor in UK, August 2019

Introduction

We are proud to present the fourth edition of our legal guide to "Privilege in Asia Pacific".

The Guide will be of particular interest to businesses engaging in cross-border activities between the highlighted jurisdictions. With the addition of a special chapter on England & Wales, the Guide now covers the law of legal professional privilege or similar rights of confidentiality across a total of 21 jurisdictions.

Legal professional privilege is a complicated but important issue not only in the context of legal proceedings but also corporate investigations. Many enforcement actions either emanate from or involve long-arm jurisdictions outside Asia and span across many jurisdictions in Asia. Given for example the English Bribery Act's broad jurisdiction and extra-territorial reach coupled with aggressive enforcement agencies, clients around Asia (both in civil and common law jurisdictions) are keen to understand how the authorities in England will apply the law of privilege, in addition to how the law is applied across Asia.

Moreover, although English case law is persuasive in most common law jurisdictions, legal advice privilege is an area in which a number of common law jurisdictions, such as Australia, Hong Kong and Singapore, have chosen to depart from English case law. Whilst English case law has confined the concept of the "client" to only those within the client company who are tasked with instructing the lawyers and obtaining their advice on behalf of the company, case law in Hong Kong and Australia adopt a broader approach and now even protect documents of the client organisation which are produced for the dominant purpose that they or their contents be used to obtain legal advice. By way of another example, whilst English law on legal advice privilege does not protect communications involving a third party (unless that party is a conduit/agent for communication between the client and the lawyers and he/she performs no other function), Singapore adopts a broader and more flexible approach. Communications to and from third parties may be protected by legal advice privilege provided that they were made for the dominant purpose of submission to legal advisers. Such protection will extend to communications to/from a third party even if that third party was more than a conduit/agent of the client provided the dominant purpose test is satisfied. Given such notable divergence in common law, we hope that the new chapter on England & Wales and a related comparative question in each of the other 20 chapters across Asia-Pacific will be relevant particularly to multinational companies who operate numerous subsidiaries across borders.

The concept of privilege is not universally recognised across the Asia-Pacific region and those countries where protection exists apply different tests. As a rule of thumb, jurisdictions can generally be divided into those with common law and those with civil law roots. Common law jurisdictions (eg, Australia, Hong Kong, Singapore and India) tend to provide for an obligation on the parties to disclose all relevant documents in civil proceedings, whereas civil law jurisdictions (eg, Japan, China and Indonesia) require parties only to submit to the process the documents on which they wish to rely. As a consequence, common law jurisdictions tend to provide for fairly robust rules which allow the party to claim privilege, whereas civil law jurisdictions will often only impose a duty of confidentiality upon the legal adviser, but will not provide for rights of privilege for the client. In the absence of an express statutory or procedural provision in civil law jurisdictions, authorities are entitled to demand that the client grant access to confidential documents or communications and the client is required to supply the requested information in a prompt, full and accurate manner. As a result, the rights of confidentiality are of limited assistance in enforcement actions.

The rules are, however, not uniform between jurisdictions on the same side of the common/civil law divide. For example, some common law jurisdictions which recognise the concept of privilege do not extend it to legal advice provided by foreign lawyers or in-house lawyers (eg Malaysia). In some civil law jurisdictions, official discussions are being held as to whether legislation should be introduced to protect privilege in limited circumstances. In Japan, for example, discussions are underway as to whether to introduce a limited lawyer-client privilege protection against investigation relating to cartel issues by the Fair Trade Commission. In Korea, recent high-profile cases have brought the issue of legal privilege into spotlight. The Korean Bar Association has been campaigning for the introduction of legislation on legal privilege similar to the protections offered in common law jurisdictions.

We hope that the Guide will prove to be a useful resource to those who seek a preliminary understanding of the different rules of privilege not only across the Asia-Pacific region but also in England and wish to maximise protection of their legally sensitive documents. The Guide owes much to the co-operation of the law firms who have contributed chapters on their respective jurisdictions. We would like to express our gratitude to them for their input. As always, we welcome any feedback from readers. Please contact us if you have any suggestions or comments.

The Guide complements other titles in the Herbert Smith Freehills series, including the "Guide to Dispute Resolution in Asia Pacific", the "Guide to Financial Services Regulation in Asia", the "Guide to Anti-corruption Regulation in Asia", "Gifts and Entertainment – compliance with anti-bribery regulation in Asia" and the "Guide to Private Wealth in Asia", all of which are updated on a regular basis. Please contact us at asia. publications@hsf.com if you would like hard/soft copies of the Guide or other Herbert Smith Freehills publications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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