Key takeaways
Implied duty of arbitral confidentiality
There are exceptions to confidentiality in arbitration, which may be overridden by the circumstances of the case.
Limited disclosure in exceptional circumstances
The sham nature of the arbitration and its threat to the respondent’s substantial assets made it just to order limited disclosure in this case.
Applications for disclosure of arbitral documents
These are more likely to succeed if the documents sought are limited and the applicant undertakes to keep them confidential.
Bourlakova & others -v- The Estate of Oleg Bourlakov & another [2025] EWHC 3085 (Ch)
This litigation originates from high-value fraud claims by Mrs Bourlakova and her children against the estate of her late husband and his relatives and business associates. It has spawned international litigation in a number of different jurisdictions, including the UK.
The latest decision from the English Court gave rise to an interesting question of whether the Court should order limited disclosure of confidential arbitral materials due to exceptional circumstances.
General background
For a discussion of confidentiality in arbitration, see our article: Confidentiality in Arbitration | Hill Dickinson.
Under English law, there is an implied duty on the parties to an arbitration to maintain arbitral confidentiality. Indeed, one of the principal attractions of arbitration over litigation is the desire of commercial parties to keep their disputes private and confidential.
The English Arbitration Act 1996, as amended by the Arbitration Act 2025, does not contain a statutory presumption of confidentiality, so parties must rely on common law. A number of the leading international arbitral institutions, including the LCIA, the SIAC and the HKIAC, expressly provide for confidentiality in their arbitration rules. Others, such as the ICC, permit a tribunal to make orders for confidentiality at a party’s request, e.g. in order to protect trade secrets.
There are limits to confidentiality in arbitration and the list of exceptions to such confidentiality includes: public interest; interests of justice; parties’ express or implied consent; order of the court and protection of a party’s legitimate interest. However, the list is not a closed one and evolves over time.
In A Corporation -v- B Firm, the Court distinguished between information protected by the obligation of arbitral confidentiality, and the experience which lawyers inevitably acquire from conducting arbitrations – see: The arbitral duty of confidentiality. That dispute highlighted issues of confidentiality arising in the context of a contractual chain.
The background facts
For the purposes of this article, we summarise briefly the relevant facts.
Mrs Bourlakova and her daughter had been granted a proprietary freezing order (PFO) over the assets of a company called Edelweiss Investment Inc (Edelweiss). A PFO prevents a party from dealing with or disposing of assets over which the applicant claims ownership or a proprietary interest. A PFO, unlike a standard freezing order, does not require the applicant to show a risk of dissipation. Edelweiss undertook not to dispose of its assets apart from in the ordinary course of business.
In July 2025, the Bourlakovas/their solicitors, Mishcon de Reya (MdR) discovered that arbitration proceedings had been filed in Russia against Edelweiss in the International Commercial Arbitration Court (ICAC) by a Mr Ploschenko for a claim exceeding US$100 million (Arbitration). MdR knew the identity of the Russian lawyers acting for Edelweiss in the Arbitration, but they sought from Edelweiss’ English solicitors, Wallace LLP, additional information and details regarding the Arbitration. MdR suggested in correspondence that the Arbitration was likely to be fraudulent and queried whether Edelweiss or its associates were colluding with a “bogus” claim.
Wallace LLP denied any claims of collusion or fraud and declined to provide additional information or details on the grounds that the Bourlakovas were not entitled to it, and that its provision would put Edelweiss in breach of its confidentiality obligations.
The initial application at the consequentials hearing of the PFO to obtain the documentation and information in relation to the Arbitration was declined by the judge, who nonetheless ordered Edelweiss to provide an explanation as to the nature of the Arbitration and to provide copies of pre-arbitration correspondence.
Following the consequentials hearing, there were exchanges of correspondence between the parties and allegations against each other as to collusion and fraud. Edelweiss appeared to suggest that the Arbitration claim against them was “bogus” and that the Bourlakovas might be orchestrating it behind the scenes. The Bourlakovas contended that the information provided about the Arbitration by Edelweiss was inadequate.
However, it was common ground that the Arbitration claim was a dishonest attempt by Mr Ploschenko to obtain an award against Edelweiss that had no proper basis. Ultimately, if the Arbitration claim succeeded, it would diminish Edelweiss’ assets by about US$100 million.
The application for limited disclosure
The Bourlakovas applied for an order that Edelweiss should:
provide them with the statements of case, evidence and procedural orders in the Arbitration;
notify the Bourlakovas if Edelweiss becomes aware of an award or enforcement procedure related to the Arbitration;
not pay out any sums in satisfaction of any such award (made in the Arbitration) without notice; and
use its best endeavours to obtain (and provide to the Bourlakovas) a transcript or recording of any hearing in the Arbitration.
They argued that the orders were required in order (i) to ensure the effectiveness and proper policing of undertakings previously given to the Court by Edelweiss, and (ii) to enable the Bourlakovas to take such further steps as may be required to safeguard Edelweiss and its assets pending the resolution of the English Court proceedings.
Edelweiss contended that the application should be dismissed because there was no risk of dissipation of Edelweiss's assets as it was bound by existing undertakings and had provided additional confirmations in correspondence. Edelweiss said it was defending the Arbitration properly and that this was a further illegitimate attempt by the Bourlakovas to intervene in the management of Edelweiss. Additionally, it argued that the documentation and information which the Bourlakovas were seeking were subject to arbitral confidentiality which the English Court should not interfere with.
As the Court said: “this case has seen a series of remarkable events the result of which is a total breakdown of trust and cooperation such that it falls to the Court to determine whether the circumstances justify the relief sought by the Bourlakovas.”
The Chancery Court decision
The Court concluded that it was just and convenient to make the orders sought by the Bourlakovas because they were necessary for the purpose of ensuring that the assets of Edelweiss which were the subject of the undertaking were protected and therefore that the undertaking was effective. The orders would have practical utility as they would allow the Bourlakovas to determine whether to take additional steps to protect their interests.
Further, although the Arbitration documents sought were (or were likely to be) subject to confidentiality under the ICAC Rules, that confidentiality did not provide a sufficiently countervailing factor in the circumstances of this case. Specifically, the “bogus” nature of the Arbitration was a compelling factor. Furthermore, the fact that it was a sham arbitration raised the question whether it was part of a wider attempt to extract assets from Edelweiss. While Edelweiss was entitled to determine its own approach to the Arbitration, the Bourlakovas were entitled to consider what steps they should take to protect Edelweiss’s assets in light of Edelweiss’s approach.
The Court decided that its jurisdiction to order disclosure as to the nature and extent of a defendant's assets also included information as to material threats to those assets, particularly where that threat was so large (in monetary terms) and so irregular (a bogus and potentially collusive arbitration).
The Court highlighted that if an award was made, it might be easily enforceable under the New York Convention. Therefore, the Bourlakovas should be allowed to consider and protect their position before such an award was made.
In conclusion, the confidentiality of the Arbitration documents provided for in the ICAC Rules was outweighed by the nature of the Arbitration and the value of the threat to Edelweiss’ assets.
In any event, on the expert evidence, confidentiality under the ICAC Rules was not absolute and breach of that confidentiality would not, without more, amount to a criminal offence. It was also unclear whether Edelweiss would be subject to a penalty. The Bourlakovas also undertook to keep the information confidential and only to use it for limited purposes.
Comment
As the Court stated, this was a highly unusual case, with allegations of forgery, fabrication and dishonesty. In determining whether it was just and convenient to make the orders sought, the Court needed to consider the nature of the Arbitration and the value of the threat to Edelweiss’s assets, and whether those factors outweighed the confidentiality provided for by the ICAC Rules. The Court’s approach to confidentiality under arbitral rules and whether this is outweighed by other more significant factors is interesting for international arbitration practitioners and users.
