Ojsc Tnk-BP Holding & Anor v Lazurenko

Where an employment contract contains a Russian governing-law and jurisdiction clause, claims concerning contractual, implied and equitable duties of confidence may be governed by Russian law. The applicable law also governs the scope of the obligation and, subject to procedural limits, the remedies available for breach.

On the expert evidence, Russian law required specified protective measures before employment information could qualify as protected commercial-secret information. It did not provide a quia timet injunction against threatened disclosure. The claimants therefore failed to show a sufficient likelihood of success for the purposes of Human Rights Act 1998, section 12(3). The interim injunctions were discharged and the claims were to be summarily struck out or dismissed, subject to further argument.

The claimants, the holding and management companies of the TNK-BP group, sought to restrain their former employee from disclosing documents said to contain confidential information and evidence of corruption. Interim injunctions had been granted by Roth J and varied by Vos J.

The defendant challenged jurisdiction under the employment contract, which required disputes to be resolved in Russian courts under Russian law. The court had to determine the applicable law, the effect of Russian law on confidentiality and remedies, and whether the interim orders should continue.

1. Applicable law. Clause 7.1 of the employment contract was a sufficient choice of Russian law under Article 3.1 of Rome I. In any event, Article 6 pointed to Russian law because the defendant habitually performed his work in Russia. The alleged equitable duty of confidence was sufficiently connected with the contract to be treated as contractual for Rome I purposes, or alternatively was governed by Russian law under Rome II.
2. Confidential information. The expert evidence established that, under Russian law, commercial-secret protection required particular protective measures, including identifying the information, restricting access, keeping records and obtaining written acknowledgements. The claimants neither pleaded nor evidenced that those measures had been taken. The employment confidentiality clause and general information-security procedures were insufficient.
3. Remedy. Russian labour law provided recourse for unauthorised disclosure, including termination and recovery of material damage, but did not provide an injunction to prevent threatened disclosure. An injunction might theoretically be available under Article 140 of the RF Civil Procedure Code to support a damages claim, but there was no evidence that such relief had been granted and the issue had not been fully argued.
4. Interim relief and disposition. The uncertainty concerning the availability of an injunction meant that the claimants could not demonstrate the likelihood of success required by Human Rights Act 1998, section 12(3). The orders made by Roth and Vos JJ were discharged and the applications to continue them were dismissed. If there was no cause of action, the appropriate procedural consequence was an order under CPR 3.4(2) or 24.2(a)(i) summarily striking out or dismissing the claims. Further submissions were invited on the precise form of that order.