Aabar Holdings SÀRL & Ors v Glencore Plc & Ors

Applications to restrict disclosure because inspection might breach foreign criminal law require a staged analysis. The applicant must first establish that disclosure would constitute an offence under the foreign law. The applicant must then establish a real, meaning actual rather than hypothetical, risk of prosecution. If that threshold is met, the court balances the risk against the importance of inspection for the fair disposal of the English proceedings.

Foreign confidentiality restrictions do not automatically justify withholding inspection. The court may consider comity, the effect of compulsion by an English order, possible affirmative defences, likely sanctions and protective measures such as a confidentiality club. It may fashion its order to reduce the foreign-law concerns. An application fails where the alleged offence and real risk of prosecution are not proved, and the documents are important to the English proceedings.

The claimants bring coordinated securities and related claims arising from alleged bribery, corruption and oil-price manipulation within the Glencore group. They seek disclosure of documents obtained during investigations by foreign authorities.

Glencore sought to restrict disclosure of three documents supplied by the Dutch Fiscal Information and Investigation Service. Mr Glasenberg sought to withhold inspection of a Dutch request for mutual legal assistance supplied to the Swiss authorities. The applications relied principally on sections 184(1) and 272 of the Dutch Criminal Code, and on alleged confidentiality obligations under Dutch legislation.

The central issues were whether disclosure would constitute an offence, whether there was a real risk of prosecution in the Netherlands, and, if so, whether the balance favoured restricting inspection.

1. Three-stage approach. The court applied the approach identified in Bank Mellat: whether disclosure would or might breach foreign criminal law; whether there was a real risk of prosecution; and, if necessary, whether the risk outweighed the importance of the documents for the fair disposal of the English proceedings.
2. Glencore and Mr Glasenberg failed to establish that disclosure would constitute an offence under section 184(1) of the Dutch Criminal Code. The DPPO’s correspondence, read as a whole, confirmed that sharing information from the criminal file did not constitute a violation within section 184. The DPPO was the relevant prosecuting authority and its position was the best available evidence on the issue.
3. Mr Glasenberg also failed to establish an offence under section 272. The mutual legal assistance request had been supplied to the Swiss authorities under section 5.1.2 of the Dutch Code on Criminal Procedure, and was then supplied to Mr Glasenberg under Swiss law. The statutory confidentiality provisions relied upon were therefore not engaged.
4. There was no real, or actual, risk of prosecution. Relevant considerations included the absence of an offence, the DPPO’s stated position, potential affirmative defences, compulsion by an English court order, comity, the limited likely sanction, uncertainty about jurisdiction and the absence of evidence of prosecutions in comparable circumstances. The court preferred Professor Brouwer’s evidence where it differed from Professor Nelemans’s, particularly because of Professor Brouwer’s practical experience and the unexplained strengthening of Professor Nelemans’s opinions.
5. Although stage three was unnecessary, the court considered it. The documents were likely to be important to the fair disposal of claims concerning alleged corruption in the Democratic Republic of the Congo and the knowledge of senior Glencore personnel. Their importance substantially outweighed any assumed prosecution risk. The court would impose appropriate confidentiality-ring provisions and frame the order to emphasise the compulsion and consequences of non-compliance.
6. The Glencore and Glasenberg applications were dismissed insofar as they concerned the FIOD documents and the mutual legal assistance request. Glencore’s application concerning Canadian documents was adjourned. Agreed relief concerning other documents was reflected in the order.