Factors Justifying Disclosure of Documents Filed in Arbitration

John Forster Emmott v. Michael Wilson & Partners Ltd., 2008 WL 576947, [2008] EWCA Civ 184 (Ct. of App., Civil Div.)

In this case, the Court of Appeal upheld an order permitting the disclosure of documents filed in a London arbitration to the courts of certain overseas jurisdictions in related proceedings.  In the London arbitration Wilson had originally made claims of fraud against the claimant Emmott but had subsequently withdrawn them.  Wilson repeated those allegations in the overseas proceedings to which Emmott was not a party.

The court held that although case law has established that parties to an arbitration should not disclose documents, such case law had also developed an implied obligation on parties not to disclose documents created,  prepared or used in an arbitration.  However, there are exceptions to this obligation.  In this case, without being informed of the London arbitration, there was a danger the foreign courts would be misled.  Disclosure was therefore required in the interests of justice. 

The case adds to the evolving case law on issues of confidentiality and privacy in arbitrations.  The court was keen to stress that limitations on confidentiality in arbitration should not obscure the fact that most arbitrations in England are conducted with complete confidentiality.  Nevertheless, it is interesting to note that this case went further than any previous authority in permitting disclosure for the purposes of foreign proceedings, even though the claimant was not actually a party to those proceedings.