The Secret's Out: English High Court Orders Limited Disclosure Despite Arbitral Confidentiality

The English High Court held that exceptional circumstances justified limited disclosure of confidential ICAC arbitration materials, given the significant risk posed to protected assets

In Bourlakova and others v Bourlakov and others [2025] EWHC 3085 (Ch), the English High Court ordered the twelfth defendant ("Edelweiss") to provide the first and fourth claimants ("the Bourlakovas") with specified documents and information relating to an arbitration ("the Arbitration") brought against Edelweiss in Moscow under the rules of the International Commercial Arbitration Court (Moscow) ("the ICAC").

The order was made despite arbitral confidentiality under the ICAC Rules. The court held that the emergence of a high-value and highly unusual arbitration gave rise to a real risk of loss of assets protected by an undertaking previously given by Edelweiss to the English court, even in the absence of voluntary dissipation. Subject to safeguards restricting use of the disclosed material, the court concluded that disclosure was necessary to protect those assets and ensure the effectiveness of the undertaking. The court further acknowledged that, on the evidence, breaching confidentiality was unlikely to attract severe consequences. Importantly, the court stressed that the decision to order disclosure was reached on the particular facts of an unusual case.

Background

The application arose within long and complex proceedings involving the Bourlakovas, Edelweiss and multiple other parties in jurisdictions including Panama, Switzerland and the Bahamas, as well as England and Wales.

In March 2025, following a summary judgment, strike-out and injunction hearing, Mr Justice Richard Smith declined to grant a worldwide freezing order against Edelweiss on the basis that there was not a sufficient risk of dissipation. However, he held that the claimants had established a case for a proprietary freezing order for which risk of dissipation was not a requirement (reported at [2025] EWHC 1792 (Ch)). This finding is the subject of an appeal.

Shortly before a consequentials hearing in July 2025, the Boulakovas drew attention to the existence of the Arbitration commenced by Mr Ploshchenko in the ICAC, seeking over $100 million from Edelweiss, and questioned whether the arbitration may be fraudulent. They made an application for the provision of information and documentation in relation to it. Edelweiss responded by accusing the Boulakovas of being 'somehow involved in orchestrating a bogus claim', which, the judge noted, was evidence of the total breakdown of trust and cooperation between the parties.

At the consequentials hearing, the court accepted an undertaking from Edelweiss 'not to in any way dispose of, deal with or diminish the value of its assets whether they are in or outside England and Wales', other than in the ordinary course of business, in lieu of an injunction. Although the judge acknowledged that the existence of the Arbitration was concerning, he declined, at that stage, to order disclosure of arbitration documents, citing confidentiality, but required Edelweiss to explain the nature of the arbitration and provide copies of pre‑arbitration correspondence.

The present application was issued in October 2025, following further correspondence and exchanges of evidence, and sought more extensive disclosure of pleadings, evidence and procedural orders in the Arbitration and related notification and obligations. It was heard by Andrew de Mestre KC, sitting as a Deputy Judge of the High Court.

Decision on confidentiality

The Bourlakovas argued that the existence of the Arbitration and the prospect of an award being granted posed a material threat to assets subject to Edelweiss' undertaking and that disclosure was necessary to guarantee Edelweiss' compliance and to allow them to take steps to safeguard the assets pending determination of the English proceedings.

Edelweiss opposed the application, contending that the undertaking was sufficient, that enforcement of any arbitral award would not amount to a dissipation by Edelweiss, and that the court should not order disclosure in breach of ICAC confidentiality obligations. Both parties relied on expert evidence on Russian law and arbitral confidentiality.

The judge held that an ancillary disclosure order does not require a risk that the undertaking itself is being or will be breached. It is sufficient that there is a real risk of loss of assets covered by the undertaking, even absent voluntary dissipation, and the key question is whether it is just and convenient in the circumstances to order disclosure of information relevant to that risk.

Although the court had previously declined to order disclosure at the July 2025 consequentials hearing, the judge considered that the position had materially evolved. It was now common ground that the arbitration was at least 'bogus' and that, objectively, there was a 'substantial threat' to a 'material portion' (around 10%) of Edelweiss' assets. The possibility that any award would benefit from the pro-enforcement policy of the New York Convention further amplified that risk.

Turning to confidentiality, the judge accepted the existence of confidentiality under the ICAC Rules but held that those obligations did not amount to a 'sufficiently countervailing factor' to prevent disclosure on the facts of the case. He emphasised that the highly irregular nature of the Arbitration and the scale of the potential threat to Edelweiss' assets justified ordering disclosure notwithstanding that confidentiality.

In reaching that conclusion, the judge drew an analogy with cases in which issues of confidentiality arose under foreign law (The Public Institution for Social Security v Al Wazzan [2023] EWHC 1065 (Comm); Various Claimants v Standard Chartered Plc [2025] EWHC 2136 (Comm)). In those cases, absent a real risk of criminal prosecution for breach of confidentiality obligations, the mere prospect of a breach of foreign law resulting in lesser regulatory or civil consequences will not ordinarily suffice to prevent disclosure.

The judge identified a number of factors reinforcing that conclusion, including that confidentiality under the ICAC Rules is not absolute; that a breach would not, of itself, amount to a criminal offence; that there was no demonstrated material risk of a penalty being imposed on Edelweiss where disclosure would be made pursuant to an order of the English court and without Edelweiss deriving any benefit; and that the Bourlakovas were willing to give undertakings restricting the use of the disclosed material.

Finally, the judge held that the order fell within the court's jurisdiction, as its power to require disclosure of the nature and extent of a defendant's assets extends to disclosure of material threats to those assets, including, in this case, the Arbitration documents.

Comment

Both parties, as well as the judge, referred to this as a highly unusual case. It was unusual not only due to the breakdown of trust between the parties and allegations of fraud and dishonesty, but also because the court ordered limited disclosure of arbitration documents notwithstanding arbitral confidentiality under the applicable rules. This order appears to have been occasioned in large part by the irregular and high-value nature of the 'bogus' Arbitration, which posed, in the judge's view, a material threat to Edelweiss' assets sufficient to outweigh the confidentiality regime under the ICAC Rules. The judge also relied upon recent English authorities indicating that, absent a real risk of criminal prosecution for breaching confidentiality, the balance may favour disclosure, an approach consistent with recent English authority in non-arbitral contexts. Finally, the judgment illustrates that safeguards such as confidentiality undertakings and restrictions on use may render disclosure orders acceptable even where arbitral confidentiality would otherwise apply. The decision is, however, firmly grounded in its specific facts and should not be read as undermining arbitral confidentiality more generally.

The authors would like to thank Delara Zand for her contribution to this post.

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