Disclosure of arbitration documents in court (Commercial Court)

Flaux J has allowed an application to use documents previously disclosed in arbitration proceedings, for the purposes of intended court proceedings. The claimants obtained an arbitration award against a German company (G), which subsequently went into liquidation. They wished to rely on documents used in the arbitration in a proposed claim for unlawful means conspiracy against a party connected to G. The claimants argued that there had been a waiver of confidentiality in the documents in question because either:

The judge was not satisfied that either of the first two grounds was established. However, referring to Emmott, he concluded that disclosure was justifiable either because it was reasonably necessary for the protection of the claimants' legitimate interests, or because the interests of justice required it. The claimants had an arguable claim which could not be properly pursued in court unless they had access to the materials from the arbitration and, therefore, they had a legitimate interest in using the material. In any event, the interests of justice required disclosure, because where there is an arguable case of unlawful conduct, the court should not allow confidentiality to stifle the ability to bring to light any wrongdoing.

For further information on confidentiality of documents in arbitration, see Practice note, Confidentiality in English arbitration law.

Case: Westwood Shipping Lines Inc and another v Universal Schiffahrtsgesellschaft MBH and another [2012] EWHC 3837 (Comm).