Disclosure In Cross-border Disputes: Traversing The Procedural Minefield

Introduction

The process of "disclosure", as it is known in England and Wales, or "discovery", as it is known in the US and in much of the Commonwealth, is for many civil law practitioners an unknown and conceptually alien legal construct. Thus, legal systems in the civil law family often do not provide for a disclosure process or, to the extent they do, nurture a radically different and more limited approach. This can cause frictions where a party to English litigation seeks disclosure of documents, perhaps located in another jurisdiction, held by a foreign party. As Gross LJ aptly stated in Bank Mellat v HM Treasury: