BNP Paribas & Ors v Deloitte & Touche LLP

Arbitration Act 1996, section 43, enables court assistance to secure a witness’s attendance to give evidence or produce specific documents for use in the arbitration. It does not confer a general power to order third-party disclosure. A request framed as classes of documents, intended to permit document hunting, is a disclosure application rather than an application to produce identified evidence. The court should not automatically read across procedural powers available in ordinary litigation, given arbitration’s privacy and party autonomy. A properly targeted request for specific documents required to be adduced in evidence may fall within section 43 and must be considered on its merits.

BNP Paribas were involved in an ICC arbitration in London against Avis concerning alleged misrepresentations about businesses acquired from Avis. Avis relied on audited accounts and a witness statement from an audit partner of Deloitte & Touche LLP. BNP applied under CPR 34.4 and section 43 of the Arbitration Act 1996 for a witness summons requiring Deloitte to produce a wide range of documents. The arbitral tribunal had indicated that the documents might be relevant and had permitted the parties to request production under section 43.

The central issue was whether section 43 permitted the court to order a third party to give disclosure in aid of arbitration proceedings, or whether it was confined to securing the production of specified documents for introduction into evidence.

1. Application dismissed. The application sought classes of documents so that BNP could examine them for material capable of undermining Deloitte’s work and the audit partner’s evidence. It was therefore an application for third-party disclosure, not an application for production of identified documents as evidence.
2. Section 43(1) of the Arbitration Act 1996 allows a party to use court procedures to secure a witness’s attendance before the tribunal to give oral testimony or produce documents or other material evidence. Read with section 43(4), it reflects the former power under section 12(4) of the Arbitration Act 1950. It does not recreate the former disclosure power under section 12(6), which was repealed by section 103 of the Courts and Legal Services Act 1990.
3. The distinction between production and disclosure was established by Panayiotou & Others v Sony Music Entertainment (UK) Ltd [1994] CH 142, The Lorenzo Halcoussi [1988] 1 Lloyd’s Law Reports 180, Wakefield v Outhwaite [1990] 2 Lloyd’s Law Reports 157 and In re Asbestos Insurance [1985] 1 WLR 331. A witness summons must identify specific documents, although a compendious description may suffice where the documents themselves are identifiable.
4. The Arbitration Act 1996 is founded on party autonomy and restricts court intervention. Disclosure between the parties is a matter for the arbitral tribunal under sections 33 and 34, including section 34(2)(d). The Model Law, article 27, concerns assistance in taking evidence and does not support a general disclosure jurisdiction.
5. A properly targeted application for specific documents required to be adduced in evidence would have to be considered on its merits. The judge expressly left to the arbitral tribunal the questions whether the audit partner’s evidence should be admitted and what weight it should receive.

First-instance decision. No prior or appellate decision is stated in the judgment.