No fishing expeditions: strict limits on non-party document production in London-seated arbitrations

Tribunals in London-seated arbitrations do not have jurisdiction to order a non-party to an arbitration to produce documents. If a tribunal considers that document requests made by a party seeking disclosure of documents from a third party are justified, typically the tribunal's only option is to order the party to the arbitration to use its best (or reasonable) efforts to obtain documents from the relevant third party and produce them in the arbitration.

But what if that is not enough? Can the English courts (as the supervisory courts of London-seated arbitrations) do anything to help the party seeking disclosure? Whilst the English courts do not have jurisdiction to order disclosure against a non-party to an arbitration, they do have the power to order the attendance before the tribunal of a witness to give oral testimony or to produce documents or other material evidence (s.43(1) of the English Arbitration Act 1996) and to order inspection, photographing, preservation, custody or detention of property which is the subject of the proceedings or as to which a question arises in the proceedings (s.44(2)(c) of the Act).

In VXJ v FY & Ors [2025] EWHC 2394 (Comm), the English Commercial Court considered, but declined to grant, applications made under ss.43(1) and 44(2)(c).

Factual background

The claimant (C) and the first defendant (D1) were parties to an investment agreement for a mining project. A dispute arose and a London-seated arbitration under the UNCITRAL Rules commenced. During document production, C requested production of documents held by D1's controlling shareholders and affiliated companies, including the second defendant (D2) and third defendant (D3), who were not parties to the investment agreement or the arbitration proceedings.

The tribunal gave permission for C to apply to the Commercial Court under ss.43(1) and 44(2)(c) regarding certain categories of documents held by D2 and D3.

The Commercial Court's analysis

s.43 application for a witness summons

The Court reviewed the case law and drew out the following requirements for an application for a witness summons for the production of documents to succeed:

1. Documents should be individually identified in the witness summons. A compendious description of several documents will suffice if each document is clearly indicated.
2. The person to whom the witness summons is addressed should be told when and where they must attend and what they must bring with them. Documents must be identified with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what they are required to do.
3. The documents must be actual documents and the court must be satisfied by evidence that they exist, or did exist, and are likely to be in the respondent's possession. Actual documents are to be contrasted with conjectural documents. It is sufficient to show that the specified documents are likely to exist; but showing that they may or may notexist does not meet this threshold.
4. Accordingly, where the applicant has not seen the documents sought and does not know what they contain, the application can be more readily characterised as a "fishing expedition", unless the applicant can demonstrate that it is likely that specific, relevant documents exist.
5. Documents should also be shown by the applicant to be relevant to the arbitration proceedings and necessary for the fair disposal of the matter. An applicant is not entitled to seek production of documents with a view to ascertaining whether they may be useful rather than with a view to adducing them in evidence of proof of some fact.

s.43 application outcome

The Court refused all of C's requests, holding that the above requirements were not met in this case. In particular:

• The requests were impermissible requests for non-party disclosure. Rather than identifying specific documents, C was requesting that D2 and D3 carry out a reasonable search for documents, which would require (for some requests) "a burdensome relevance review and a privilege review".
• Some requests were not for specific documents but for conjectural documents, which may or may not exist.
• C had not shown that the documents were necessary for a fair disposal of the arbitration or relevant to the issues for determination in the arbitration.

s.44(2)(c) application for inspection or photographing of property

C asked the Court to apply the approach taken in The Tasman Spirit [2004] EWHC 3005 (Comm), arguing that an order for production of documents under s.44 is materially similar to the approach taken under s.43. In The Tasman Spirit, the preservation of the contents of the documents sought for resolving issues in the arbitration was of such weight as to justify the Court exercising its s.44 powers.

s.44(2)(c) application outcome

The position in The Tasman Spirit was different; the Court in the present case considered that the requests were an application for non-party disclosure, insufficiently precise and not shown to be relevant or necessary for the fair disposal of the issues in the arbitration. The Court therefore refused the s.44(2)(c) application on the same basis as it refused the s.43 application.

However, the Court also stated that, contrary to The Tasman Spirit, it did not consider that it had jurisdiction under s.44(2)(c) to order the production of documents by a non-party for copying to assist an arbitration. This is because s.44(2)(c) "is not concerned with an order for the disclosure of documentary evidence (that is the disclosure of the information contained within a document) but rather with inspecting, photographing, safeguarding or preserving the actual property (which could in principle be the document itself) which forms the subject matter of the proceedings or where a question arises in the proceedings in respect of that property".

This statement clarifies that where a case concerns the information which a document conveys (i.e. the message), it is likely to be an application for documentary disclosure which must satisfy the requirements of s.43. Whereas if the issue concerns the actual physical object which carries the information (i.e. the medium), the application falls within s.44(2)(c).

Key takeaways

1. Neither s.43 nor s.44 permit general disclosure against non-parties to an arbitration. The court's powers under these sections operate within strict parameters and will not be exercised widely.
2. When applying under s.43, a party should ensure that its requests identify actual documents, demonstrate their relevance, and show that production is necessary for the fair disposal of the arbitration.
3. Parties should not make applications under s.44(2)(c) unless the application is for the purpose of preserving, inspecting, photographing or safeguarding the actual property (i.e. the medium carrying the information). The request should not relate to the message the property conveys.
4. Parties should not assume that the fact that a tribunal has granted permission to apply to court means that the documents sought are necessary for the fair disposal of the arbitration.
5. The Court emphasised at the end of the judgment that it would be open to the non-party defendants to provide disclosure voluntarily via D1 if they held relevant documents necessary to the fair disposal of the arbitration. If C then persuaded the tribunal that the non-party defendants had chosen not to do so, it would be a matter for the tribunal to draw inferences, if any.

Authored by Annabel Maltby and Emily Hack.