THE AUTHORS:
Athena McDonald, Associate at Clyde & Co
Isabel van der Hoorn, Associate at Clyde &Co
Clyde & Co’s Young Arbitration Group provides a unique insight into international arbitration issues through the lens of young international arbitration practitioners working across different jurisdictions. In this series with Daily Jus, Clyde & Co examines notable arbitral developments from around the world, offering a jurisdiction-by-jurisdiction analysis of key cases, legislative reforms, and emerging trends that shaped international arbitration over the past year.
Introduction
In English seated arbitrations, a tribunal’s authority derives from the parties’ agreement to arbitrate. This principle fundamentally limits the scope of a tribunal’s 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.
This limitation becomes particularly challenging in the context of document production. Where relevant documents are held by non‑parties to an arbitration, a tribunal’s 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.
Statutory Framework: Sections 43 and 44 of the Arbitration Act 1996
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.
Specifically:
- Section 43 enables the Court to issue a witness summons requiring a person to attend before a tribunal or produce documents or other material evidence. The Court has repeatedly emphasised that the power under section 43 is not equivalent to the broad disclosure regime.
- Section 44 gives the Court power to support the arbitral process, including by making orders in respect of the taking of witness evidence, the preservation of evidence, and the inspection of property (which may include documents).
Although the Arbitration Act 2025 has now come into force, it does not alter the statutory basis for non‑party document production.
VXJ v FY & Ors
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 [2025] EWHC 2394 (Comm) reinforces the stringent thresholds an applicant must meet when seeking document production from non-parties to an arbitration.
Background
VXJ v FY & Ors 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’s 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’s jurisdiction to order document production.
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 “best efforts” to obtain the relevant documentation. VXJ later contended that FY had failed to comply with the tribunal’s direction and obtained permission from the tribunal to apply to the Court for relief under sections 43 and 44 of the Arbitration Act 1996.
VXJ’s resulting application sought the Court’s intervention by way of:
- a witness summons under section 43 of the Arbitration Act 1996, compelling D2 and D3 to produce certain documents; or, alternatively
- an order under section 44(2)(c) of the Arbitration Act 1996 for the copying of documents under section 44(2)(c) of the Arbitration Act 1996.
The Decision of the Commercial Court
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.
It confirmed that, under section 43, the following requirements must be met:
- The witness summons should identify each individual document;
- Each individual document must be identified with sufficient certainty that the person to whom the witness summons is addressed has no real doubt about what to produce;
- Each individual document must be known to exist, or there must be evidence that it is, at the very least, likely to exist and be in the respondent’s possession; and
- Each document must be relevant to the arbitration and necessary for its fair disposal.
Therefore, the threshold for an application under section 43 is high. The requesting party must establish that the documents are necessary – rather than merely advantageous – 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.
VXJ’s 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.
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.
VXJ’s 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.
Key Takeaways
The decision in VXJ v FY & Ors confirms that, while the Court remains supportive of the arbitral process, its intervention is strictly circumscribed by the Arbitration Act 1996. The Court’s careful application of its own tests of relevance, necessity, and specificity when evaluating document requests further reflects its reluctance to order non‑party disclosure. Parties should therefore approach such applications with caution; any requests that lack specificity or are akin to ‘fishing expeditions’ are unlikely to succeed.
This judgment provides welcome clarity for parties contemplating applications for non‑party 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‑driven measures may offer a more effective route than recourse to the courts.
ABOUT THE AUTHORS
Athena McDonald is an associate in Clyde & Co’s London office. She specialises in complex commercial litigation and international arbitration, with experience in technology, energy and financial disputes.
Isabel van der Hoorn is a dispute resolution Associate in Clyde & Co’s London office.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
