How does the English court balance the importance of transparency and open justice against arbitral rules requiring confidentiality? In Bourlakova & Ors v the Estate of Oleg Bourlakov & Ors [2026] EWHC 87 (Ch), Andrew de Mestre KC, sitting as a Deputy Judge of the High Court, permitted temporary redactions to the publicly available version of a judgment on the basis that the interests of justice favoured maximising the prospects of the disclosing party, Edelweiss, being able to defeat the foreign-seated arbitral claim against it.
Summary
As recorded in the “Main Judgment”, Bourlakova & Ors v Estate of Oleg Bourlakov & Ors [2025] EWHC 3085 (Ch), the First and Fourth Claimants, the Bourlakovas, applied for orders requiring the Twelfth Defendant, Edelweiss, to produce, amongst other things, statements of case, evidence and procedural orders related to an arbitration it was defending. At the time, Edelweiss was subject to an undertaking pursuant to which it had agreed not to in any way dispose of, deal with, or diminish the value of its assets, whether in or outside England and Wales. The Bourlakovas were concerned about the prospect of a substantial award being granted in the arbitration, which placed the assets subject to the undertaking at risk.
The Judge granted the Bourlakovas’ application. However, he then had to consider what information about the arbitration should be placed in the public domain. The Bourlakovas argued that the arbitration was not confidential and, even if it was, they contended for limited redactions, arguing that confidentiality was trumped by the principles of transparency and open justice. Edelweiss noted that it could be subject to a penalty on the application of the claimant in the arbitration, on the basis of an alleged breach of the arbitration’s confidentiality regime. Further, Edelweiss considered that publication could prejudice its position with the tribunal, a concern that was heightened by the “apparent irritation” of the tribunal when it was told that Edelweiss had been ordered to give disclosure of otherwise confidential documents.
The balancing exercise
The Judge agreed that, by virtue of the applicable rules, the arbitration was prima facie confidential. However, he also acknowledged the judgment in Optis v Apple [2025] EWCA Civ 1263 in which it was recognised that any exception to all parts of a judgment being public must be justified by “the yet more fundamental principle, that courts work in the interests of justice” and that redactions are likely to be “rare indeed”.
Both the Bourlakovas and Edelweiss considered the arbitration to be “bogus”. As a result, the Judge considered that the interests of justice lay in maximising the prospects of Edelweiss being able to defeat the arbitral claim. This would be in the interests of the Bourlakovas and Edelweiss. Notwithstanding, the Judge did not accept the totality of the redactions proposed by Edelweiss. In particular, the arbitral claimant’s identity and the headline amount remained unredacted because they had already been mentioned in open court and were not “significant confidential information”. The Judge instead confined the redactions principally to the detail of the claim and Edelweiss’s defence.
Given that any derogation from open justice should be limited to that strictly necessary to secure the wider interests of justice, the Judge considered that the unusual circumstances of the case warranted a temporal limitation on the redactions. Following notification of a final award, the unredacted judgment would be published seven days thereafter unless either party applied for a different order.
Practical implications
One reason that parties insert an arbitration agreement into their contractual relationship is to maintain confidentiality should a dispute arise. However, this judgment is another reminder that confidentiality can never be guaranteed, particularly when one or more of the parties to the arbitration agreement find themselves before the English court.
This decision does not establish a general exception to arbitral confidentiality. Rather, it illustrates that the English Court will separately consider disclosure, use and publication, and will permit only the minimum derogation from open justice necessary on the particular facts. Parties seeking to maintain the confidentiality of an arbitration should therefore identify precisely what information remains confidential, the concrete prejudice publication may cause, and why narrower or time-limited measures would be insufficient.
Disclaimer: This article is provided for general information only and is accurate as of 20 September 2026. It may not be updated to reflect subsequent legal or other developments. It does not constitute legal advice and should not be relied on as such. Specific legal advice should be obtained in relation to particular circumstances.
