In a recent decision, the English High Court in Dreymoor Fertilisers Overseas v Eurochem found that the subject of a US disclosure order should not be relieved from its obligations under that order even though the court recognised that compliance may cause it problems given its involvement in arbitration proceedings in England.
One of the chief reasons for not interfering with the US order was that the evidence to be disclosed was to be used in proceedings in other jurisdictions, most notably the BVI and Cyprus. The English court found it had no legitimate interest in policing a party’s attempt to obtain evidence for use in foreign proceedings.
Eurochem alleges in various sets of proceedings, including arbitration proceedings in England and court proceedings in the BVI, that Dreymoor (amongst others) paid bribes to two of Eurochem’s former employees. Eurochem sought and obtained a disclosure order in the US requiring the former director of Dreymoor to provide evidence that would be used in the BVI and Cyprus proceedings (and elsewhere).
Dreymoor sought an anti-enforcement injunction, that would relieve it of the requirement to comply with the US disclosure order (having already failed to overturn the decision in the US on two separate occasions) on the basis that Eurochem’s disclosure application was unconscionable because compliance with the order would make it difficult for Dreymoor to prepare for the arbitration proceedings in England.
Whilst the English court found that the seeking of disclosure orders in other jurisdictions was, in principle, capable of amount to unconscionable conduct, it would have been a serious breach of comity for the English court to frustrate the US court’s order in this case.
Of the various reasons for finding that Dreymoor’s claim against Eurochem must fail (and with it, the application for an injunction), of particular importance was that the court had no legitimate interest in policing a party’s attempt to obtain evidence in foreign proceedings. In this regard, the court considered there was a strong argument that the BVI proceedings were the “lead” proceedings in the context of the ongoing global dispute and the US court had reached a fully informed decision that the evidence was needed in those (and other) proceedings. It also found that any difficulty Dreymoor found itself in as a result of complying with the US order were largely of its own making.
Harneys act for Eurochem in the BVI.