Athena McDonald<\/strong>, Associate at\u00a0Clyde & Co<\/strong><\/a>
Isabel van der Hoorn<\/strong>, Associate at\u00a0Clyde &Co<\/strong><\/a><\/p>\n\n\n\n
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Clyde & Co<\/a>\u2019s Young Arbitration Group provides a unique insight into\u00a0international arbitration\u00a0issues through the lens of young international arbitration practitioners working across different jurisdictions. <\/em>In this series with Daily Jus<\/a><\/em><\/em>, Clyde & Co examines notable arbitral developments from around the world<\/strong>, offering a jurisdiction-by-jurisdiction analysis of key cases, legislative reforms, and emerging trends that shaped international arbitration over the past year.<\/em><\/p>\n\n\n\n In English seated arbitrations, a tribunal\u2019s authority derives from the parties\u2019 agreement to arbitrate. This principle fundamentally limits the scope of a tribunal\u2019s powers. Generally, a tribunal may only impose obligations on the parties before it, meaning its jurisdiction does not extend to non-parties to an arbitration. <\/p>\n\n\n\n This limitation becomes particularly challenging in the context of document production. Where relevant documents are held by non\u2011parties to an arbitration, a tribunal\u2019s lack of jurisdiction over third parties means it cannot compel their disclosure, even when such material may be critical to the resolution of the dispute. However, the English courts can assist pursuant to the Arbitration Act 1996.<\/p>\n\n\n\n For arbitrations seated in England and Wales, sections 43 and 44 of the Arbitration Act 1996 grant the Court authority to support the arbitral process by ordering document production, including against non-parties to an arbitration.<\/p>\n\n\n\n Specifically:<\/p>\n\n\n\n Although the Arbitration Act 2025 has now come into force, it does not alter the statutory basis for non\u2011party document production. <\/p>\n\n\n\n The availability of relief under sections 43 and 44 of the Arbitration Act 1996 remains confined to exceptional cases only. Recent case law such as VXJ v FY & Ors <\/em>[2025] EWHC 2394 (Comm)<\/a> reinforces the stringent thresholds an applicant must meet when seeking document production from non-parties to an arbitration. <\/p>\n\n\n\n VXJ v FY & Ors <\/em>concerned an application by VXJ in an arbitration brought by FY. VXJ sought the production of certain documents, both specific documents and defined categories of documents, said to be in the control of FY\u2019s controlling shareholders and affiliates (D2 and D3). These parties were closely connected to the dispute but were not parties to the arbitration and thus fell outside of the tribunal\u2019s jurisdiction to order document production.<\/p>\n\n\n\n The tribunal accepted that D2 and D3 were likely to hold the relevant documents and, lacking authority to order them to produce such documents, directed FY to use \u201cbest efforts\u201d<\/em> to obtain the relevant documentation. VXJ later contended that FY had failed to comply with the tribunal\u2019s direction and obtained permission from the tribunal to apply to the Court for relief under sections 43 and 44 of the Arbitration Act 1996.<\/p>\n\n\n\n VXJ\u2019s resulting application sought the Court\u2019s intervention by way of:<\/p>\n\n\n\n In determining the application, the Court considered the terms on which the tribunal granted permission to VXJ (the party seeking non-party document production) and the scope of its powers under sections 43 and 44(2)(c)(i) of the Arbitration Act 1996.<\/p>\n\n\n\n It confirmed that, under section 43, the following requirements must be met: <\/p>\n\n\n\n Therefore, the threshold for an application under section 43 is high. The requesting party must establish that the documents are necessary \u2013 rather than merely advantageous \u2013 for the fair disposal of the issues and that they are described with sufficient precision in the witness summons. Any requests for broad disclosure will not meet this threshold. <\/p>\n\n\n\n VXJ\u2019s requests under section 43 were dismissed on the basis that they did not fall within the scope of specific and necessary documents and were impermissible requests for non-party disclosure.<\/p>\n\n\n\n With respect to section 44(2)(c) of the Arbitration Act 1996, the judgment confirmed that this provision is not a mechanism for obtaining copies of documents. Its scope is limited to the inspection or preservation of tangible property (which may include documents) but does not extend to disclosure of the information contained within such documents. Therefore, requests must focus on the documents themselves (as physical property), as opposed to the information they hold. <\/p>\n\n\n\n VXJ\u2019s requests under section 44(2)(c) were dismissed on the same basis as those under section 43; the requests were insufficiently precise and did not fall within the scope of specific and necessary documents.<\/p>\n\n\n\n The decision in VXJ v FY & Ors<\/em> confirms that, while the Court remains supportive of the arbitral process, its intervention is strictly circumscribed by the Arbitration Act 1996. The Court\u2019s careful application of its own tests of relevance, necessity, and specificity when evaluating document requests further reflects its reluctance to order non\u2011party disclosure. Parties should therefore approach such applications with caution; any requests that lack specificity or are akin to \u2018fishing expeditions\u2019 are unlikely to succeed. <\/p>\n\n\n\n This judgment provides welcome clarity for parties contemplating applications for non\u2011party disclosure in future proceedings. It underscores the importance of identifying at an early stage whether critical evidence rests with third parties and, if so, whether tribunal\u2011driven measures may offer a more effective route than recourse to the courts. <\/p>\n\n\n\n ABOUT THE AUTHORS<\/strong><\/p>\n\n\n\n Athena McDonald <\/strong>is an associate in Clyde & Co<\/strong><\/a>\u2019s London office. She specialises in complex commercial litigation and international arbitration, with experience in technology, energy and financial disputes.<\/p>\n\n\n\nIntroduction<\/b><\/h2>\n\n\n\n
Statutory Framework: Sections 43 and 44 of the Arbitration Act 1996<\/strong><\/h2>\n\n\n\n
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VXJ v FY & Ors<\/em><\/strong><\/h2>\n\n\n\n
Background<\/strong><\/h2>\n\n\n\n
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The Decision of the Commercial Court<\/strong><\/h2>\n\n\n\n
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Key Takeaways <\/strong><\/h2>\n\n\n\n
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