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The English High Court in Bourlakova v Estate of Bourlakov has confirmed that an order to disclose arbitral material is to be honoured even where the arbitral tribunal has refused permission to do so. The judgment is also a timely reminder that arbitral confidentiality is not a trump card, and that collateral use must be justified document by document.
The case forms part of long-running litigation over assets of the late Oleg Bourlakov. Edelweiss, one of the defendants, had promised the English court not to deal with its assets outside the ordinary course of business. When Edelweiss faced a Moscow arbitration claim of over US$101m, the English court ordered it to give the Bourlakovas documents from the arbitration, including a recording or transcript of the main hearing, so that the undertaking could be policed.
The arbitral claim was dismissed in January 2026, although the claimant in those proceedings sought to challenge the award. Meanwhile, Mr Korovin, who had given evidence for the claimant in that arbitration, then commenced a new arbitration claiming around US$272.4m from Hermitage One, one of the claimants in the English proceedings. Hermitage One said the new claim bore striking similarities to the first. A number of applications ensued.
The order required Edelweiss to ask the arbitral tribunal for permission to record the hearing and to provide a copy of the recording. The tribunal had already allowed recording but refused permission to disclose it, so Edelweiss argued that its obligation to disclose fell away. The English court disagreed:
Construed objectively, the order imposed two separate obligations. The word "and" was disjunctive and the duty to disclose was not subject to the tribunal's permission.
There was no ambiguity to resolve in Edelweiss's favour, and the context of the original hearing confirmed that permission was only ever in issue for making the recording.
There was no material change of circumstances which would justify variation of the disclosure order. The order existed to protect Edelweiss's assets and, while the arbitration was ongoing, the threat remained. The tribunal's refusals were not sufficiently material.
The apparent refusal of Edelweiss's Russian lawyers to hand over the recording was no answer without cogent evidence that they were entitled to refuse to provide a copy to their own client.
Edelweiss also sought an order that the documents provided under the disclosure order be deleted by the Bourlakovas. The court adjourned that application. The court considered that deletion is best considered once the arbitration has ended, as the documents may become public or fall to be disclosed in the English proceedings.
Hermitage One sought permission to use the disclosed material to defend the Korovin arbitration. Permission requires special circumstances giving a cogent reason to release the party from the collateral use restriction. Edelweiss wanted permission limited to three documents. The court considered:
Cogent reasons existed. The Korovin arbitration claimed very substantial sums, there were very substantial similarities between the arbitrations and it would be relevant to see what Mr Korovin and the other witnesses did and did not say in the first arbitration.
Arbitral confidentiality was relevant but not of great weight. Both sides accepted the first arbitration was bogus, its claimant was unlikely to complain about further use, and there was a real prospect of the documents being aired in open court in Russia. Separately, the way both claims were made – under English law, in foreign arbitral tribunals, long after the relevant limitation period would have expired and without prior warning – heightened the need for the tribunal in the new arbitration to have access to all of the relevant material.
Without deciding whether the Bourlakovas had breached their undertaking on use, the court held that the alleged breaches were no reason to penalise a separate entity, Hermitage One.
Ther...
The case forms part of long-running litigation over assets of the late Oleg Bourlakov. Edelweiss, one of the defendants, had promised the English court not to deal with its assets outside the ordinary course of business. When Edelweiss faced a Moscow arbitration claim of over US$101m, the English court ordered it to give the Bourlakovas documents from the arbitration, including a recording or transcript of the main hearing, so that the undertaking could be policed.
The arbitral claim was dismissed in January 2026, although the claimant in those proceedings sought to challenge the award. Meanwhile, Mr Korovin, who had given evidence for the claimant in that arbitration, then commenced a new arbitration claiming around US$272.4m from Hermitage One, one of the claimants in the English proceedings. Hermitage One said the new claim bore striking similarities to the first. A number of applications ensued.
The order required Edelweiss to ask the arbitral tribunal for permission to record the hearing and to provide a copy of the recording. The tribunal had already allowed recording but refused permission to disclose it, so Edelweiss argued that its obligation to disclose fell away. The English court disagreed:
Construed objectively, the order imposed two separate obligations. The word "and" was disjunctive and the duty to disclose was not subject to the tribunal's permission.
There was no ambiguity to resolve in Edelweiss's favour, and the context of the original hearing confirmed that permission was only ever in issue for making the recording.
There was no material change of circumstances which would justify variation of the disclosure order. The order existed to protect Edelweiss's assets and, while the arbitration was ongoing, the threat remained. The tribunal's refusals were not sufficiently material.
The apparent refusal of Edelweiss's Russian lawyers to hand over the recording was no answer without cogent evidence that they were entitled to refuse to provide a copy to their own client.
Edelweiss also sought an order that the documents provided under the disclosure order be deleted by the Bourlakovas. The court adjourned that application. The court considered that deletion is best considered once the arbitration has ended, as the documents may become public or fall to be disclosed in the English proceedings.
Hermitage One sought permission to use the disclosed material to defend the Korovin arbitration. Permission requires special circumstances giving a cogent reason to release the party from the collateral use restriction. Edelweiss wanted permission limited to three documents. The court considered:
Cogent reasons existed. The Korovin arbitration claimed very substantial sums, there were very substantial similarities between the arbitrations and it would be relevant to see what Mr Korovin and the other witnesses did and did not say in the first arbitration.
Arbitral confidentiality was relevant but not of great weight. Both sides accepted the first arbitration was bogus, its claimant was unlikely to complain about further use, and there was a real prospect of the documents being aired in open court in Russia. Separately, the way both claims were made – under English law, in foreign arbitral tribunals, long after the relevant limitation period would have expired and without prior warning – heightened the need for the tribunal in the new arbitration to have access to all of the relevant material.
Without deciding whether the Bourlakovas had breached their undertaking on use, the court held that the alleged breaches were no reason to penalise a separate entity, Hermitage One.
Ther...