Commercial court rejects witness summons applications in international arbitration dispute

The Commercial Court has dismissed applications for witness summonses and court orders seeking document production from non-parties in support of London-seated arbitration proceedings, reinforcing the strict requirements that must be satisfied before courts will compel third parties to produce documents.

In VXJ v FY & Ors [2025] EWHC 2394 (Comm), Mr Justice Calver considered applications under sections 43 and 44 of the Arbitration Act 1996 seeking production of three categories of documents from controlling shareholders not party to the arbitration: corruption investigation documents, US proceedings documents, and technical evaluation reports.

Witness summons requirements under section 43

The court emphasised that witness summonses differ fundamentally from disclosure orders. Each document must be individually identified or described compendiously with sufficient certainty to leave no doubt about compliance requirements. The documents must be actual rather than conjectural, with evidence demonstrating they exist or likely exist in the respondent's possession.

The court rejected the corruption investigation documents request, which sought "documents cited, quoted, exhibited, appended or annexed to any work product(s) or report(s) of Baker & McKenzie" regarding specific corruption allegations. This constituted an impermissible disclosure exercise requiring searches through a 2.5 terabyte archive held by third-party solicitors, with extensive relevance and privilege reviews needed.

Regarding the US proceedings documents, the court found most requests fell outside the tribunal's consent scope or required broad searches rather than specific identification. Documents subject to protective orders in US litigation presented additional complications, with producing parties' consent potentially required.

The technical evaluation reports request similarly failed as it sought "any reports" from 2016 onwards relating to the mining project, requiring judgmental searches rather than specific document identification.

Relevance and necessity standards

The judgement stressed that applicants must demonstrate documents are not merely relevant but necessary for fair disposal of proceedings. The court distinguished between documents that might be useful versus those required to prove specific facts. With D1 having already produced over 500 documents on mismanagement allegations, plus expert evidence and independent reports available, additional production was not deemed necessary.

Section 44 application fails

The alternative application under section 44(2)(c) for document "photographing" was rejected. Mr Justice Calver clarified that this provision concerns inspection of property forming the proceedings' subject matter, not disclosure of documentary evidence. The distinction between inspecting the physical medium (relevant to authenticity questions) versus accessing informational content (requiring section 43 compliance) proved decisive.

Practical implications

This judgement reinforces established principles while providing contemporary guidance on arbitration-related court applications. The court's analysis demonstrates the high threshold for compelling non-party assistance, particularly where broad document categories are sought rather than specifically identified materials.

The decision preserves the balance between supporting arbitral proceedings and protecting non-parties from fishing expeditions disguised as witness summonses. Courts will scrutinise applications particularly closely where documents are confidential or commercially sensitive, requiring compelling evidence of necessity rather than mere relevance.

The judgement serves as a reminder that tribunal permissions under sections 43(2) and 44(4) do not predetermine court applications' success. Careful document identification, clear relevance demonstration, and necessity proof remain essential for securing non-party production orders in arbitration support proceedings.

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