Disclosure obligations prevail over foreign prosecution concerns in cross-border investigations

The High Court's decision in Aabar Holdings S.à.r.l. & Ors v Glencore Plc & Ors provides crucial guidance on managing disclosure obligations where defendants face potential foreign prosecution. The Honourable Mr Justice Bryan's judgement, delivered on 28 August 2025, examined applications by Glencore and former director Ivan Glasenberg to restrict disclosure of documents obtained from Dutch authorities.

The case arose from ongoing international investigations involving bribery allegations related to mining activities in the Democratic Republic of the Congo. Glencore sought to withhold three documents received from the Dutch Public Prosecution Service (DPPO), arguing that disclosure might breach Section 184 of the Dutch Criminal Code, which criminalises non-compliance with official orders and interference with investigations.

Three-stage assessment framework

Following established precedent from Bank Mellat v HM Treasury, the Court applied a three-stage test. First, whether disclosure would breach foreign criminal law; second, whether a real risk of prosecution exists; and third, if both conditions are met, balancing the prosecution risk against the importance of ensuring a fair trial.

Justice Bryan noted the complex interplay between English disclosure obligations and Dutch criminal law, emphasising that cross-border investigations create particular challenges for maintaining confidentiality whilst ensuring fair proceedings. The judgement recognised that disclosure duties stem not only from domestic law but from European and international legal frameworks governing cooperative investigations.

Expert evidence and prosecution risk

The Court heard conflicting expert testimony on Dutch law. Professor Brouwer argued that potential sanctions under Section 184 would be insufficient to warrant criminal prosecution, particularly given the DPPO's failure to articulate specific objections to disclosure. He assessed the likelihood of Dutch prosecution as low, noting the absence of clear assertions from Dutch authorities that disclosure would violate their criminal code.

Professor Nelemans, representing the defence position, contended that non-compliance with Dutch legal framework could result in prosecution. However, Justice Bryan found these conclusions unconvincing, primarily due to the lack of explicit DPPO opposition to the proposed disclosure.

The judgement further observed that even if the DPPO's position were to change, affirmative defences would likely be available to the defendants, including necessity and compliance with judicial orders, substantially reducing prosecution prospects.

Balancing disclosure against prosecution risk

The claimants alleged serious wrongdoing, including bribery related to mining operations, arguing that the contested documents were essential to substantiate their claims. Justice Bryan acknowledged the documents' potential central role in ensuring fair disposal of the case.

The Court's analysis emphasised the fundamental importance of disclosure in civil proceedings, particularly where serious allegations require thorough examination. The judgement recognised that whilst foreign prosecution risks deserve consideration, they cannot automatically override the requirements of fair proceedings in English courts.

Practical resolution

The Court dismissed both applications for disclosure restriction, ordering production of the contested documents. To address legitimate confidentiality concerns, Justice Bryan established a confidentiality club ensuring sensitive information would be appropriately managed whilst remaining accessible to those requiring it for case preparation.

This decision reinforces the principle that disclosure obligations generally prevail over speculative foreign prosecution risks, whilst acknowledging the legitimate need to protect sensitive information through appropriate confidentiality measures. The ruling provides valuable precedent for managing similar conflicts in international commercial litigation involving parallel criminal investigations across multiple jurisdictions.

The case demonstrates the continuing evolution of cross-border legal proceedings, where national legal boundaries create complex challenges requiring careful judicial balancing of competing interests and obligations.

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