The issue in Michael Wilson Partners Ltd v John Forster Emmott [2008] EWCA Civ 184 was whether Mr Justice Flaux, at first instance, had acted correctly in authorising the disclosure, for the purposes of proceedings in New South Wales and the British Virgin Islands, of documents generated in an English arbitration. Mr Emmott had sought an order permitting disclosure on the basis that MWP’s case in the London arbitration was materially inconsistent with that advanced in the foreign proceedings. Flaux J considered that disclosure was in the interests of justice so that the foreign courts would not be misled or potentially misled where the cases that were being run in the various proceedings were essentially raising the same or similar allegations. In the Court of Appeal, MWP sought to argue that the decision of Flaux J constituted an unwarranted intrusion into the confidentiality of arbitrations and had serious adverse consequences for the attractiveness of England as the seat of arbitration.

Lord Justice Collins, giving the leading judgment, noted that there was an obligation, implied by law and arising out of the nature of arbitration, on both parties not to disclose or use for any other purpose any documents prepared for, disclosed or produced in an arbitration. That obligation was not limited to commercially sensitive information. However, the scope of this obligation depended on the context in which it arose and on the nature of the information or documents at issue. There were a number of circumstances in which disclosure was permissible: where there was express or implied consent, where the court had given permission, where it was reasonably necessary for the protection of the legitimate interests of an arbitrating party and where the interests of justice and/or the public interest required disclosure. The latter was applicable in this case. Without being informed of the arguments being advanced in the London arbitration, there was a danger that the New South Wales court would be misled. In upholding the first instance decision, Lord Justice Collins stated that the interests of justice were not confined to the interests of justice in England and that the international dimension of this case demanded a broader view.

This judgment provides helpful commentary on the law and practice of confidentiality and privilege as applicable to arbitration proceedings and raises questions of considerable practical importance relating to national and international arbitration. It is important to note, however, that the concentration in the judgment on the limits of confidentiality in arbitration should not obscure the fact that the overwhelming majority of arbitrations in England are conducted in private and with complete confidentiality.