English High Court orders the disclosure of foreign arbitration documents to protect assets subject to undertakings

In Bourlakova and others v Bourlakov and others [2025] EWHC 3085 (Ch), a defendant was ordered to disclose documents relating to an arbitration seated in Russia to allow for the “policing” of its undertaking to the English court not to dispose of certain assets. Noting the likely “bogus” nature of the arbitration (which presented a substantial threat to the defendant’s assets), the Court found that the claimants should be provided with the information sought, so they could consider the steps they might take to protect their position. Preventing the dissipation of assets outweighed the fact that the defendant would be in breach of its confidentiality obligations in the arbitration proceedings.

The judgment is significant as it indicates the English court’s willingness to order disclosure as to the nature and extent of a defendant’s assets, even where the information sought falls within the scope of a foreign arbitration. The Court’s jurisdiction to order disclosure extends to information on material threats to relevant assets, and applies even where the loss of assets might occur through court‑ordered enforcement of an arbitral award rather than via a voluntary act by a defendant.

Background

The hearing concerned an application by the First and Fourth Claimants (the “Claimants”) for various orders in relation to an arbitration under the International Commercial Arbitration Court (“ICAC”) rules in Moscow (the “Arbitration”) involving the Twelfth Defendant, Edelweiss Investments Inc (“Edelweiss”).

The Claimants sought copies of the statements of case, evidence, procedural orders and a transcript or recording of any hearing in the Arbitration. The Claimants also asked the Court to order Edelweiss to notify them of an award or enforcement procedure related to the Arbitration, and to require Edelweiss not pay out any sums in satisfaction of any such award without notice.

The Claimants’ application is part of a dispute involving more than 20 defendants in litigation running since 2020. In March 2025, Edelweiss and other defendants made an application for the claims against them to be struck out or reverse summary judgment, and the Claimants applied for a worldwide freezing order against Edelweiss. In July 2025, the Court dismissed both applications but granted the Claimants a proprietary freezing order against Edelweiss. In lieu of this injunction, the Court later accepted undertakings by Edelweiss not to dispose of assets outside the ordinary and proper course of business. Edelweiss was also required to provide regular reporting of liabilities and claims over USD 50,000.

The Claimants later found out that a claim valued at more than USD 100 million had been brought against Edelweiss in the Arbitration arising out of the sale of a Russian oil and gas company in 2014. Edelweiss had not notified the Claimants of the Arbitration despite its undertakings to the English Court. The Claimants pressed Edelweiss for information relating to the Arbitration, which Edelweiss resisted. However, Edelweiss agreed to notify the Claimants of any award, not to voluntarily pay any award without giving the Claimants 28 days’ notice and to notify the Claimants of any enforcement process. The Claimants were not satisfied with Edelweiss’ responses and issued their application.

The parties’ positions

The Claimants asserted that the orders sought were necessary to ensure the effectiveness and proper policing of undertakings by Edelweiss, and so they could take further steps as may be required to safeguard Edelweiss and protect the value of its assets pending the resolution of the English court proceedings.

Edelweiss disagreed that there was a risk of dissipation of its assets, since it was already bound by the undertakings and had provided additional confirmations in correspondence. Edelweiss maintained that it was defending the Arbitration properly and that the Claimants were seeking to intervene in the management of Edelweiss’ affairs. Edelweiss further argued that the orders sought by the Claimants had no practical utility and the materials in the Arbitration were in any event subject to confidentiality.

The Court’s reasoning and decision

The Court ordered Edelweiss to produce the categories of documents in Arbitration sought by the Claimants. Its reasoning was as follows:

1. Risk to the assets

The Court reaffirmed that ancillary orders (including disclosure orders) can be made on a protective basis to ensure that assets are not disposed of in breach of a freezing order, or for the purpose of “policing” an injunction. The same principles apply to assets that are the subject of undertakings. Therefore, the orders sought by the Claimants were necessary to ensure that Edelweiss’ assets were protected and that the undertakings were effective. Given the “bogus” nature of the arbitration and the substantial threat to Edelweiss’ assets subject to the undertaking (the USD 100 million claim represented 10% of those assets), ancillary relief was justified.

The Court rejected Edelweiss’ argument that there was no “policing” function because any loss to the assets would arise from a court‑ordered enforcement of the arbitral award rather than voluntary acts by Edelweiss. It held that the focus of the test applied by the courts was the protection of assets. There was no requirement to show a “real risk” of breach of the undertaking, only a “real risk” that assets may be lost.

2. Practical utility

The Court agreed with the Claimants that there was practical utility in ordering disclosure before any arbitral award, so that the Claimants could consider steps in or in relation to the Arbitration before the question of enforcement arose. The Court noted that there appeared to be the possibility, under the ICAC Rules, of inviting the tribunal to seek further evidence or information from the Claimants as a third party, even if the Claimants could not become parties to the Arbitration without consent. While Edelweiss’ promises to notify and delay payment were helpful, these actions would take place after the award was issued, at which time it might be too late, or at least more difficult, to resist enforcement of the award.

3. Confidentiality

Having considered Russian law expert evidence, the Court acknowledged that the documents sought were subject to confidentiality under the ICAC Rules (Rule 46). English case law tends to weigh in favour of disclosure absent a real risk of criminal prosecution, even where foreign confidentiality regimes were engaged. In the present case, there was no real risk of criminal prosecution, and any penalty for breach appeared uncertain and limited in purpose, as Edelweiss would not itself benefit from the breach. Furthermore, the disclosure would be subject to confidentiality undertakings and limited use provisions in this jurisdiction. The Court concluded that confidentiality in the Arbitration was not absolute and, on balance, did not outweigh the need for disclosure in this case.

4. Other factors

The Court declined to take into account allegations by Edelweiss about the source of the Claimants’ knowledge of the Arbitration and past satellite litigation, which were irrelevant to the need to preserve Edelweiss’ assets.

Comment

This decision underscores the wide discretion of the English courts to order targeted disclosure to police or ensure the effectiveness of undertakings to preserve assets, including where a foreign arbitration threatens those assets. There is no need to show a “real risk” that an order or undertaking relating to assets will be breached, but rather a “real risk” that assets may be dissipated.

The Court notably held that the need for disclosure outweighed arbitration confidentiality. However, this is likely fact-specific. The Court gave significant weight to the fact that both parties acknowledged the Arbitration was at least “bogus”. Moreover, both the Claimants and Edelweiss had a shared interest in preserving the protected assets.

Noting the unusual circumstances of this case, the judgment should not cause undue alarm among parties who choose arbitration to resolve their disputes with the aim of keeping disputes confidential. Ancillary orders for the disclosure of documents will only be made within certain parameters, and will not be granted if their scope extends beyond information that is necessary for the purpose of policing the injunction. The English court has stressed the need to be vigilant to prevent attempts to seek further evidence for some other purpose, such as to enable a claimant to investigate issues in the substantive claim, and it will carefully assess the practical utility of requiring disclosure on a case by case basis.

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