Confidentiality is often cited as one of arbitration’s greatest advantages. For many businesses, particularly those operating across borders, it is a key reason for choosing arbitration over litigation.
However, the recent High Court decision in Bourlakova & Ors v Estate of Oleg Bourlakov & Ors [2025] EWHC 3085 (Ch) demonstrates that arbitral confidentiality is not absolute.
In exceptional circumstances, the English courts may order disclosure of arbitration materials, even where this conflicts with confidentiality obligations.
Background: the case in context
The case arose out of complex, multi-jurisdictional litigation involving allegations of asset dissipation and high-value claims.
The claimants sought disclosure of documents relating to a foreign arbitration conducted under ICAC (Moscow) rules, arguing that:
- The arbitration posed a real threat to assets
- It may have been artificial or collusive in nature
- Disclosure was necessary to protect their position and enforce court undertakings
The defendant resisted, relying on the confidential nature of arbitration proceedings.
The High Court’s decision
The High Court ordered limited disclosure of arbitration materials, despite the existence of confidentiality obligations.
The key takeaway from the decision is that confidentiality in arbitration can be overridden where justice requires it.
The Court held that:
- There was a material risk to protected assets
- Disclosure was necessary to “police” an existing undertaking to the court
- The arbitration presented unusual and potentially abusive features
Importantly, the disclosure was carefully limited and subject to safeguards restricting how the information could be used.
Why did confidentiality not prevail?
1. Risk to assets took priority
The Court found a genuine risk that assets could be lost, including through enforcement of a potential arbitral award.
This was sufficient to justify intervention, even though the loss might occur via court enforcement rather than voluntary dissipation
2. The arbitration was potentially “bogus”
A significant factor was the questionable nature of the arbitration, described in commentary as potentially:
- Artificial
- Collusive
- Designed to extract value improperly
This elevated the case beyond a standard confidentiality dispute.
3. Practical utility of disclosure
The Court accepted that disclosure would allow the claimants to:
- Assess the risk
- Take protective steps
- Act before an award was issued and enforced
This forward-looking, strategic element was critical.
4. Confidentiality is not absolute
While arbitration is generally confidential under English law, the Court reaffirmed that:
- Confidentiality is an implied obligation, not a strict rule
- It is subject to exceptions where disclosure is necessary to protect legitimate interests
In this case, confidentiality did not outweigh the need to prevent potential injustice.
Practical implications for businesses
- Confidentiality is not guaranteed
While English law strongly protects arbitral confidentiality, it is not absolute. The Court will conduct a balancing exercise, considering confidentiality, fairness, the risk of harm, and practical necessity, and may order disclosure where justified.
Businesses should not assume arbitration materials will remain private, particularly where there are parallel court proceedings, asset preservation measures or allegations of bad faith.
- Increased court intervention
The English courts may intervene to protect assets and uphold undertakings or injunctions, even where this impacts ongoing arbitration proceedings.
- Heightened cross-border risk
In multi-jurisdictional disputes, arbitration may intersect with freezing orders, proprietary claims and enforcement risks under the New York Convention, creating a more complex risk landscape that must be managed carefully.
- Importance of drafting and governance
Contractual confidentiality provisions cannot override the court’s supervisory powers. Businesses should consider how arbitration interacts with litigation risk and plan for potential disclosure in exceptional scenarios.
How we can help
At IMD Corporate, we advise on complex, cross-border disputes where arbitration and litigation intersect.
We can assist with:
- Strategic advice on confidentiality risks in arbitration
- Applications for or challenges to disclosure of arbitral materials
- Asset protection strategies, including freezing injunctions and undertakings
- Managing parallel court and arbitration proceedings
If you are navigating a dispute where arbitration confidentiality may be at risk, our team can provide clear, strategic guidance and discuss your position.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
