By Jonathan Clarke, Associate, and Leila Huthart, Paralegal
Bourlakova and others v Bourlakov and others [2025] EWHC 3085 (Ch)
In a case described as “highly unusual”1 by both parties and the judge, the English High Court ordered limited disclosure of specified documents relating to an arbitration commenced under the rules of the International Commercial Arbitration Court in Moscow (the “ICAC Rules”). The order was made for the twelfth defendant (“Edelweiss”) to provide the first and fourth claimants (the “Bourlakovas”) with specific documents relating to the arbitration (including pleadings and hearing transcripts) despite the usual rules of arbitral confidentiality being in play.
Mr. Andrew de Mestre KC, sitting as a Deputy Judge of the High Court, held that the emergence of this “bogus and potentially collusive arbitration”2 gave rise to a real risk of assets being lost or dissipated, and that this was unreasonable where those assets were being expressly protected by an undertaking previously given by Edelweiss to the English court. It was therefore determined that disclosure was necessary to protect those assets and ensure the effectiveness of the undertaking.
The decision was significant in demonstrating the English court’s wide discretion to order targeted disclosure notwithstanding the usual rules of arbitral confidentiality.
The present decision is part of a saga between some twenty defendants that has been ongoing in England and Wales since 2020 and involves multiple sets of proceedings in other jurisdictions including Panama, Switzerland and the Bahamas.
In short, this dispute stems from high-value fraud claims by Mrs Bourlakova and her children against the estate of her late husband and his relatives and business associates.
In March 2025, Mr Justice Richard Smith heard strike-out/reverse summary judgment applications, as well as the Bourlakovas’ application for a worldwide proprietary freezing order against Edelweiss.
This hearing then resulted in a judgment by Mr Justice Richard Smith on 18 July 2025,3 which:
Following the 18 July 2025 decision, there was a consequentials hearing on 23-24 July 2025 to deal with the terms of the proprietary freezing order.
As Edelweiss offered an undertaking not to dispose of its assets other than in the ordinary course of business, this was accepted in lieu of an order for an injunction. The undertaking stated as follows:
“(2) Until further order of the Court, Edelweiss undertakes not to in any way dispose of, deal with or diminish the value of any of its assets whether they are in or outside England and Wales” [emphasis added].
Edelweiss also undertook to provide a quarterly list of “liabilities and all claims asserted against it” exceeding US$50,000, along with any specific details relating to any such claims or liabilities.
At the consequentials hearing, an oral application was made by the Bourlakovas’ leading counsel for the provision of documentation and information relating to an arbitration that Edelweiss was now involved in that the Bourlakovas had become aware of. The arbitration allegedly arose out of the sale of Burneftegaz, which was a company that bought up oil fields at auctions.
The judge recognised that the existence of the arbitration was a “not insignificant concern”, but also that the issues of confidentiality which had been raised by Edelweiss could not be “lightly ignored”. As a consequence, the judge declined to order the disclosure sought by the Bourlakovas but ordered Edelweiss to provide an explanation and to provide copies of pre-arbitration correspondence.
Correspondence continued between the parties, but tensions only increased.
In October 2025, the Bourlakovas sought more extensive relief. They applied for orders requiring Edelweiss to:
The Bourlakovas contended that the orders sought were fundamental to ensure the effective and proper policing of the undertakings by Edelweiss. They maintained that there was a real risk of a “perfect storm”,5 where assets could be removed through foreign proceedings in which they were not a party.
It was no surprise that Edelweiss rejected the Bourlakovas’ arguments and asserted that, based on the earlier decision in July 2025, there was no risk of dissipation.
Edelweiss further submitted that the enforcement of any arbitral award would be a court-ordered process, rather than a voluntary dissipation of assets, and that the extensive relief sought by the Bourlakovas lacked practical utility and intruded into matters protected by confidentiality under the ICAC Rules.
The Court ultimately agreed with the Bourlakovas and granted disclosure of the requested arbitration documents.
Although the Court had previously declined to order disclosure at the 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 there was a significant threat to around 10% of Edelweiss' assets. The possibility that any award would benefit from the pro-enforcement policy of the New York Convention compounded that risk.
The Court’s reasoning is summarised below:
The Court maintained that the purpose of ancillary orders, such as disclosure orders, can include a policing function even where any loss may result from court-ordered enforcement rather than voluntary dissipation.
In this case, the Court considered the unusual circumstances of the arbitration, including the timing and apparent lack of engagement from the interested parties, and determined that these factors posed a material threat to the assets intended to be safeguarded by the undertaking.
The Court accepted the Bourlakovas’ argument that the ordering of disclosure documents at this stage in proceedings would have practical utility. It would enable the Bourlakovas to determine whether to take further steps to protect their interests while the arbitration was ongoing, rather than waiting until an award (which could be enforced quite easily) was issued.
The Court maintained that the arbitration documents were subject to confidentiality obligations under Rule 46 of the ICAC Rules.
However, following the approach taken in The Public Institution for Social Security v Al Wazzan [2023] EWHC 1065 (Comm) and Various Claimants v Standard Chartered Plc [2025] EWHC 2136 (Comm), the Court focused on whether there was a real risk of prosecution rather than merely a potential breach of foreign law. It was emphasised that, where a real risk of criminal prosecution cannot be shown, then “some lesser form of regulatory action…for preserving confidentiality”6 is unlikely to outweigh the need for disclosure in certain circumstances.
The Court further observed that confidentiality under the ICAC Rules is not absolute, as materials may be deployed to advance a party’s case. Balancing these considerations against the “not insignificant concern”7 to a material portion of Edelweiss’ assets, the Court concluded that ICAC confidentiality did not amount to a “sufficiently countervailing factor”8 to displace what was otherwise a just and convenient order for disclosure necessary to protect the relevant assets.
The Court’s approach in this case is notable and shows that sometimes the need for disclosure may outweigh the usual confidentiality of an arbitration.
This decision provides a helpful insight into some of the factors that a court may find persuasive in such situations. For example:
Ultimately, this decision highlights the broad discretion of the English courts when granting ancillary relief and serves as a notable exception to the customary practice of arbitral confidentiality.
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