Confidentiality in arbitration

In Emmott v Wilson & Partners Limited [2008] EWCA Civ 184, the claimant (C) applied to the court for an order permitting the disclosure of documents which had been generated in an arbitration in London, to the courts of New South Wales (NSW) and the British Virgin Islands (BVI). In the London arbitration the defendant (D) had originally made claims of fraud against the claimant but had subsequently withdrawn them. In the proceedings in NSW and the BVI, which were essentially based on the same facts, D advanced claims against C's colleagues which included allegations that C was guilty of fraud, but did not join C as a defendant. At first instance the order for disclosure was granted and D appealed.

The Court of Appeal dismissed the appeal. Case law has developed an implied obligation on parties not to disclose documents created or 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 ever evolving case law on issues of confidentiality and privacy in arbitrations. The court was keen to stress that limits of 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 goes further than any previous authority in permitting disclosure for the purposes of foreign proceedings, even though C was not actually a party to those proceedings.