General Principles of Law

Case: The AM & S Case (1982, Euro Court of Justice)

Facts: This case was dealing with an antitrust offense. Applicant asked to
produce copies of documents, and they did produce most. However, some were not, on
the basis that they are entitled to legal confidentiality, where these rights are
protected by an attorney-client privilege.

Issue: How can the court approach the issue of the supposed attorney-client
privilege when there is no treaty provision that applies? - What to do when there
is a gap in int'l law?

Holding: Find a general principle of law.

Reasoning: There is no provision on this subject in the Treaty of Rome, so court

has to look at general principles of law. The judges here looked at member
countries of the ECJ (European Court of Justice), to see what they could do. To
be able to come up with a general principle of law, they looked at how member
countries dealt with this, and agreed that there was an attorney-client privilege.
However, they did not extend this to nations not member of the European community
(now EU).

Notes:
○ Gaps in the law - what to do when there is a gap? Here they figured out a
general principle of law. However, common law systems would be more willing to do
this rather that civil law systems, so it may be a problem.

Notes

• This is from the European Court of Justice, which is the Supreme Court of the
EU.
• The EEC treaty is a treaty that European members entered into.
• What are they basing the suit on, for the confidentiality claim?
○ EEC treaty is silent on this matter.
○ Look at other countries: how do they handle this?
§ There is a preponderance of countries using the confidentiality
privilege
§ This pattern is called General Principle of International Law
• Not all conversations with lawyers are protected.
○ After the court looks and decides there is a confidentiality, there is
another part of this test:
§ Has to deal with the defense of client
§ Has to be independent (not in-house) counsel
• At the very least, we must recognize this principle among the EU states, to
extend this privilege to non- in house counsel representing defense cases.

• Distinction btwn CIL and General principles of International Law

○ General principles - principles of legal reasoning that cut across many
legal topics
§ Estoppel
§ Equity
§ Good faith
§ Procedural rules like privileges in the discovery process
○ The 2 principles overlap, we're looking or patterns in both
 ○ But in CIL we have the subjective view (psychological - opinion juris),
which doesn’t exist in determining general principles
• CIL is more specific (narrower in scope), while general principles are more
broad, and discuss legal issues

• Why recognize general principles of international law?

○ Int'l law is Still developing, so we need the gap fillers
○ There is implied consent - b/c they are so widespread, so they should be
implicitly regarded as the background conditions of a treaty

• Difference in Evidence for each:

○ CIL - looks to assembly resolutions, and agreements, treaties,
proclamations
○ General Principles look at patterns in the individual municipal systems
§ Not disputed as much as CIL