Peters & Peters

Restricting information for foreign proceedings: addressing the Ramilos trading effect

Fraud is increasing beyond domestic borders and the need for cooperation between jurisdictions in pursuing the proceeds of financial wrongdoing has never been so acute. Recent developments internationally, notably in the United States, seem to reduce the tools of collaboration available. However, the position in our own jurisdiction is lacking in this regard and in need of serious reflection.


In this jurisdiction, considerable legal attention has been given to the recent decision in the United States Supreme Court in ZF Automotive US v Luxshare [21-401] (“Luxshare”). Luxshare has curtailed the application of the powerful disclosure powers of s.1782 of the US Code with respect to foreign-seated arbitrations. S.1782 is often used in support of English proceedings where there is a US nexus for extremely broad disclosure orders, including both the production of documents and the requirement to sit for a deposition. While it will remain an option for those litigating in England, it will generally no longer be available for those engaged in arbitration.1 Given the relatively limited form of disclosure that is common in arbitrations, this will cause particular challenges.


The concern expressed as to the result in Luxshare, however, risks a lack of focus on what is in fact a more unfortunate position in this jurisdiction. In Ramilos Trading -v- Buyanovsky [2016] EWHC 3175 (Comm) (“Ramilos Trading”) the High Court held that Norwich Pharmacal orders cannot be made in support of foreign court proceedings and, rather, a prospective applicant must make use of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the 1975 Act”). The decision in Ramilos Trading gives rise to three particular issues for consideration and an important call for reform.


First, Ramilos Trading includes a very meticulous consideration of the relevant authorities. It is a judgment of the current Chancellor of the High Court. It deals comprehensively with the origin of the jurisdiction being statutory [65-66] and the previous authorities which had made such relief available [67-111]. The result is that Norwich Pharmacal relief is not available in relation to foreign proceedings and those in the position of wishing to obtain the English Court’s assistance in obtaining necessary information for foreign proceedings must avail themselves of the 1975 Act. The conclusion that it reaches, no matter how undesirable to those wishing to use the English Court to obtain information so as to pursue wrongdoing in foreign jurisdiction, is not likely to be disturbed.

Secondly, the 1975 Act is not a particularly satisfactory mechanism for obtaining information or evidence in support of foreign proceedings and this is particularly the case in fraud cases. The reason for this can be illustrated by reference to two aspects. The first of these is that, as noted in Ramilos Trading [71], until the Crime (International Co-operation) Act 2003 the 1975 Act was the relevant regime for obtaining information and evidence for both foreign civil and criminal proceedings. As such, the 1975 Act was not designed exclusively with civil proceedings in mind. While the criminal sphere of information and evidence collection has since benefited from a more bespoke regime, the civil sphere has not. The second of these is that, under s.1 of the 1975 Act the assistance must be granted in response to ‘a request issued by or on behalf of a court or tribunal’. Therefore an applicant must initiate a form of proceeding in the foreign court or tribunal (at least enough to obtain a letter of request) incurring the attending cost, time, uncertainty and risk of tipping off. This is the antithesis to the flexibility and speed needed in fraud cases and compels a potential claimant to choose their jurisdiction before seeing the evidence and information (or at least, to go further than would often be preferable). This restrictive approach ties the hands of the victims of international frauds and their advisors.

Thirdly, reform in this area should go beyond merely expanding the geographic amenability of Norwich Pharmacal relief. While an update to the 1975 Act to make it civil-specific would be helpful, it will not resolve all of the issues that arise. In particular, it would not address the risks identified above of costs, time and tipping off. Furthermore, it would not necessarily address the disparity existing between what can be obtained in this jurisdiction and, for example, the United States in the case of foreign court proceedings. As noted in Ramilos Trading [46, 62], the jurisdiction of the English Court with respect to Norwich Pharmacal is for the ‘focused disclosure of necessary information’ and not the wide-ranging gathering of evidence. This is a narrower approach than is taken in the United States. While it is understandable that the English Court should not wish to allow its processes to be used to undertake fishing expeditions and disproportionately burdensome trawling for evidence, the level of restriction embodied in Ramilos Trading risks too narrow an approach. Careful consideration should be given to whether a more effective way of updating the 1975 Act in this regard (acknowledging that it will still be required for some circumstances) is a wider codification of the Norwich Pharmacal jurisdiction which expands both the information and evidence obtainable and the geographical destinations in which it can be used.

The benefits of reframing the obtaining of foreign evidence and its importance are manifold. Of central concern must be how to assist those who are subject to complex international frauds. The English Court’s great emphasis on comity and desire to improve international efforts to combat corruption and other financial wrongdoing are a strong basis for it to embrace being a best-in-class source of evidence for foreign proceedings in this area. Ultimately, our jurisdiction should ask itself whether it thinks the fraud victims’ investigations should begin where it believes the evidence is or can be obtained and from there identify the ultimate field of battle, or whether those victims should have to choose the immediate forum first, and then engage in a slow, costly and cumbersome effort to collect necessary evidence from this jurisdiction.



1 Certain arbitral tribunals could meet the new test set down by the US Supreme Court, but they will be rare and beyond the scope of this article.


This article was first published in the Young Fraud Lawyers’ Association‘s Autumn 2022 Newsletter.