Department Of Economic Policy & Development Of City Of Moscow & Anor v Bankers Trust Company & Anor

Civil Procedure Rules 1998 r 62.10 makes privacy the starting point for most arbitration claims, but it does not create automatic or permanent secrecy. Once publication is in issue, the court must weigh all relevant circumstances, including arbitral confidentiality, the parties’ interests, open justice and the public interest in scrutiny of the court’s supervisory role.

A private hearing and publication of the resulting judgment raise distinct questions. A reasoned judgment on a serious-irregularity application should ordinarily be public if it can be given without revealing significant confidential information. Publication may nevertheless be withheld where the judgment would disclose genuinely sensitive material and no sufficient countervailing interest is shown. A factually neutral summary that reveals no confidential information should not be restrained merely because the full judgment remains private.

The respondents had applied under section 68 of the Arbitration Act 1996 to challenge an UNCITRAL arbitral award arising from a loan transaction involving Moscow, Bankers Trust and International Industrial Bank. Cooke J dismissed those applications after a private hearing under CPR r 62.10.

The judge later directed that his substantive judgment should remain private and that a Lawtel summary of it should not be published. Moscow appealed, seeking publication of the full judgment or, alternatively, the summary. The central issue was whether the privacy applicable to the arbitration claim justified continued restriction on publication of the court’s reasons.

1. The appeal was allowed in part. The Court upheld the restriction on publication of Cooke J’s full judgment, but varied the order to permit Moscow to publish the Lawtel summary generally.

2. Per Mance LJ, with whom Carnwath LJ and the Vice-Chancellor agreed, CPR r 62.10 reflects party autonomy and the expectation of privacy in English arbitration. It creates a starting point of private hearings for most arbitration claims. It is not a presumption of permanent secrecy and does not displace the court’s duty to assess the circumstances when publicity or publication is sought.

3. A hearing in private and public delivery of the resulting judgment require separate assessments. The court must weigh the importance of open justice, recognised in Scott v Scott [1913] AC 417 and article 6(1) of the European Convention, against the confidentiality of the arbitration and the parties’ legitimate interests. A reasoned section 68 judgment should be public where it can be framed without disclosing significant confidential information, especially if it provides useful legal or practical guidance.

4. The court rejected any blanket rule against publication of judgments arising from arbitration claims. The judge should consider whether sensitive material can be omitted, anonymised or otherwise protected. The interests or fears of persons not party to the litigation cannot be decisive.

5. On the particular facts, Cooke J was entitled to keep the full judgment private. It contained politically and commercially sensitive confidential material. Moscow could state the outcomes of both the arbitration and the section 68 proceedings, and had shown no sufficient objective reason for publication of the full reasons.

6. The Lawtel summary was different. It was factually neutral, disclosed no sensitive or confidential information, was for practical purposes already in the public domain, and had some legitimate legal interest. There was therefore no basis for an order preventing its publication. Moscow was ordered to pay 85% of Bankers Trust’s appeal costs.

• Court of Appeal (Civil Division): Allowed Moscow’s appeal only in respect of publication of the Lawtel summary: [2004] EWCA Civ 314.
• Commercial Court (Cooke J): Dismissed the section 68 challenges to the arbitral award on 21 March 2003. On 5 June 2003, directed that the substantive judgment and the Lawtel summary should not be published.