The recent High Court decision in VXJ v. FY & others[1] provides guidance on the limits of the English courts’ powers to compel non-party document production in support of arbitration under sections 43 and 44(2)(c) of the Arbitration Act.
Background
The application in this case related to an arbitration brought by FY against VXJ. FY and VXJ were parties to an investment agreement relating to a mining project. FY claimed that VXJ had imposed significant taxes and penalties on it which breached the investment agreement’s tax stabilisation provisions. VXJ counterclaimed, alleging corruption and mismanagement of the project by FY that led to delays and lost revenues.
During the course of the arbitration, VXJ had requested various documents held by ‘RH’ and ‘XL’, the controlling shareholders of FY, and ‘X’, another company involved in the mining project in which RH had a majority stake. The documents requested related to a corruption investigation, US proceedings, and internal project management and financial reports. The Arbitral Tribunal issued a procedural order that recognised these entities likely had relevant documents and noted that FY could not compel its parent companies to produce any such documents but directed FY to use “best efforts” to obtain the documents and to report on RH, XL and X’s cooperation.
RH and XL objected to producing documents, citing non-party status, overbreadth, confidentiality, privilege and that some documents were already in VXJ’s possession. The Arbitral Tribunal gave VXJ permission to apply to the English court.
VXJ made an application under sections 43 and 44 of the Arbitration Act seeking:
- Witness summonses for RH and XL to produce documents (the section 43 application).
- Alternatively, orders for copying documents pursuant to section 44(2)(c).
The High Court’s decision
Regarding VXJ’s application under section 43, the court emphasised that there is a distinction between disclosure, which tends to be broad and party-focused, and production of specific documents by non-parties, which must be narrow and document-specific. Additionally, the court pointed out that there are a series of requirements that must be followed in order for a section 43 application to be successful:
- Each document should be identified separately in the witness summons. If specific identification isn’t feasible, a less detailed but still adequate description of categories of documents may be acceptable as long as the applicant identifies those in a concise and comprehensive manner.
- The addressee of the witness summons must be told when and where to attend and what documents to bring. These must be described with enough certainty to leave no real doubt about what is required.
- The documents sought must be actual documents, supported by evidence that they are likely to exist (or existed) and are likely in the respondent’s possession. This excludes conjectural documents that may or may not exist.
- If the applicant has not seen the documents and does not know their contents, the application may be characterised as a fishing expedition unless the applicant can show it is likely that specific, relevant documents exist.
- The applicant must show that the documents are relevant to the proceedings and necessary for the fair disposal of the matter. The applicant may not seek documents merely to see if they might be useful; the aim must be to adduce them as evidence of a fact. That the arbitrator’s materials could be improved by further documents does not, by itself, mean the arbitration cannot be fairly disposed of without them. Nor should a witness be required to undertake an unduly burdensome search through records to locate documents or to check whether any documents on a broad topic exist.
The court refused all of VXJ’s various requests for documents since they were too broad and constituted fishing expeditions, were conjectural in nature or were not necessary for the fair disposal of the proceedings. The judge further added that the Arbitral Tribunal had not determined that the documents were necessary – only that VXJ may be able to apply to the English courts to obtain them. Finally, the court denied the request to compel searches through privileged investigations or documents subject to US protective orders without proper foundations, such as third-party consents.
Although the section 43 application failed, the court suggested that the non?parties to the arbitration could still voluntarily disclose those documents. If VXJ persuaded the tribunal of the necessity of the documents but the non?party defendants declined to disclose, it would be for the tribunal to decide what, if any, inferences to draw from that refusal.
Section 44(2)(c) application was also refused. The court clarified that this provision concerns the inspection or photographing of property forming the subject matter of proceedings (the physical medium itself) not the disclosure of content in those documents. Accordingly, this provision cannot be used to obtain documentary information that would not be otherwise available under section 43.
Takeaway
While the English courts have important powers to support arbitral proceedings, these powers are rightly exercised within strict parameters. The courts will (unsurprisingly) not countenance broad applications targeted at the production of documents by a non-party to an arbitration proceeding. Section 43 applications for production of documents must be specific, targeted and justified as necessary for the fair disposal of the case. Parties should not assume that a tribunal’s permission for a party to seek court assistance equates to a finding of necessity or relevance for the documents sought; this is a matter reserved to the English courts’ discretion.
[1] [2025] EWHC 2394 (Comm).
Contributors
Juan Nascimbene