Introduction
Arbitration is fundamentally consent based: the tribunal’s authority derives solely from the parties’ agreement to arbitrate, which defines its jurisdiction and the scope of issues it may decide. As a result, an arbitral tribunal’s powers are limited to the parties to that agreement. The tribunal generally cannot bind, compel or impose obligations on non-parties. The tribunal’s jurisdiction therefore does not extend to ordering production of documents from non-parties to the arbitration.
Sections 43 and 44 of the Arbitration Act 1996 (the “Act”), which provide the legal framework for arbitrations seated in England and Wales, empower the courts in England and Wales to support the arbitral process by granting them authority to make orders relating to documents and evidence, including against non-parties.
The recent Commercial Court decision in VXJ v FY & Ors [2025] EWHC 2394 (Comm) (the “Judgment”) confirms that the court does not have the power to make orders for disclosure against non-parties to an arbitration. Rather, section 43 of the Act entitles a party to seek production of specific identifiable documents by way of a witness summons. The threshold an applicant must satisfy is high because the documents must be shown to be “necessary” – not merely “useful” – for the fair resolution of arbitral proceedings.
The Judgment also clarifies the distinct function of section 44 of the Act. While widely framed, section 44(2)(c)(i) allows the court to make orders in respect of actual physical property (which may be a document) where that property forms the subject matter of the arbitration or where a question arises in the arbitration in respect of that property.
A party seeking non-party document production must, before applying to the court, seek the tribunal’s permission to make an application. The court will have close regard to the terms in which a tribunal has granted permission. However, the permission is procedural only; the fact of the tribunal’s permission does not automatically satisfy the court’s thresholds on relevance, necessity and precision.
Factual background
In VXJ v FY & Ors, the Application (the “Application”) was brought by the respondent in the arbitration (the “Applicant”) against the claimant in the arbitration (“Respondent 1”) and its controlling shareholders (“Respondents 2 and 3”) who were not parties to the arbitration.
In the arbitration, the Applicant had sought certain documents said to be held by Respondents 2 and 3. An arbitral tribunal generally has no jurisdiction to make an order against non-parties for the production of documents. Having determined that the requested documents were relevant and material to the dispute, the tribunal was therefore limited to directing Respondent 1 to “make best efforts” to obtain the documents from Respondents 2 and 3.
The Applicant subsequently alleged that Respondent 1 had failed to comply with the tribunal’s order and sought the tribunal’s permission to apply to the court, as required by the Act.
The Application was brought under two provisions of the Act:
(i) Section 43, which entitles a party to an arbitration to apply to the court to “secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence”, and
(ii) Section 44, which gives the court wide powers to make orders in relation to, inter alia, the taking of witness evidence, the preservation of evidence and, under section 44(2)(c)(i) as relied on by the Applicant, the inspection of “property which is the subject of” the arbitration or “as to which any question arises” in the arbitration.
In determining the Application, the court had regard to the scope of its power under sections 43 and 44(2)(c)(i) of the Act and the relevant factors to be applied.
The court’s powers under section 43 of the Act and the test to be applied
The Judgment confirms that section 43 is not a tool for obtaining disclosure from a non-party to the arbitration. Neither the court nor a tribunal has jurisdiction to order disclosure against a non-party. Rather, section 43 allows an arbitral party (once it has its tribunal’s permission) to apply to the court to use its powers “to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents”.
Citing the decision of the Court of Appeal in Tajik Aluminium v Hydro Aluminium [2006] 1 WLR 767, Mr Justice Calver noted that while applications for disclosure normally require a reasonable search for documents falling within broadly described classes of documents, applications under section 43 require the identification of specific documents which are known to exist. Moreover, unlike an order for disclosure, a witness summons involves the exercise of the court’s coercive powers; failure to comply may result in the addressee being in contempt of court.
In determining an application made under section 43, the court will have regard to the following factors:
- Scope of tribunal consent or party agreement: Section 43(2) requires that an application must only be made with the permission of the tribunal or the agreement of the other parties. The requested documents must fall within the scope of any such permission or consent.
- Specificity: Documents must be individually identified in the witness summons. A description of a class of documents may suffice only if exact documents are indicated. The documents must be identified with sufficient certainty to “leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do”.
- Existence: The court must be satisfied that the specific documents exist or did exist and that they are likely to be in the non-party’s possession.
- Relevance: The documents which are sought must be shown by the applicant to be relevant to the proceedings on-foot and accordingly necessary for the fair disposal of the issues in the arbitration. It is not sufficient to say they “may be useful” or that they may assist with bringing proceedings against the non-party.
- Confidentiality: The court will have regard to whether the documents sought are confidential, although confidentiality will not serve as an absolute bar to an order for production.
- Proportionality: The witness must not be required to undertake an unfairly burdensome search through their records to locate the documents or to see if they hold any documents relating to a particular subject matter.
The Application was dismissed by Mr Justice Calver having regard to these factors. Among other findings, Mr Justice Calver held that several of the requests lacked specificity, meaning that, properly characterised, they were in the nature of an impermissible request for non-party disclosure. Other requests did not fall within the scope of the permission given by the tribunal or, alternatively, were not shown to be necessary for there to be a fair disposal of the arbitration.
The court’s powers under section 44 of the Act
The court’s powers under section 44 in respect of witnesses and evidence are wide ranging. The 2025 amendments to the Act have clarified prior uncertainty as to the application of section 44 to non-parties, confirming that orders may be made “whether in relation to a party or any other person” (as we reported in a previous article).
In this case, the Applicant sought an order for the “photographing […] of the property [namely the same documents sought by the Applicant under section 43] as to which any question arises in the proceedings”, which is an express power of the court under section 44(2)(c)(i).
In dismissing the Application, Mr Justice Calver held section 44(2)(c)(i) is not concerned with an order for the disclosure of documentary evidence (i.e. disclosure of the information contained within a document) but rather with inspecting, photographing, safeguarding or preserving the actual property (which could, in principle, be a document) that forms the subject matter of the proceedings or where a question arises in the proceedings in respect of that property. Thus, the court will draw a distinction between an application involving information, i.e. “the message the document conveys” and an application involving the actual physical object, i.e. “the medium which carries the information”. Section 44(2)(c)(i) of the Act only applies to the latter.
You can access the judgment in VXJ v FY & Ors online, and we would be happy to discuss it with you.
Client Alert 2025-248
