A balancing act: IMF confidentiality obligations do not trump duty of disclosure in Argentinian securities dispute

This case serves an illustration of the factors that the court will take into consideration when weighing up the competing interests of confidentiality obligations against the duty of disclosure, here under the rules of the disclosure pilot under PD 51U. The court found that confidentiality obligations owed to the IMF did not override the duty of disclosure. The court took into account both the scope of the confidentiality obligation and the relevancy and contemporaneous quality of the documents.

The application

The Republic of Argentina made an application under paragraphs 15 and 18.1 of CPR PD51U, to withhold from inspection documents which are in its possession and which were provided to it by the International Monetary Fund (IMF).  Argentina resisted the production of the documents on the grounds that they were subject to a duty of confidentiality owed to the IMF.

The background

The underlying claim relates to securities issued by Argentina under which the right to payment was linked to the growth of Argentina's GDP. The claimants alleged that in 2013, Argentina decided to rebase its GDP by reference to a different year of base prices (2004 rather than 1993) and, as a result, it was declared that the relevant performance condition for payment under the securities was not met.  Palladian alleged in various respects that the rebasing was either contractually invalid or involved a breach of Argentina's contractual duties.

Argentina, in its response to those allegations, relied upon its interactions with the International Monetary Fund (IMF) to explain both the timing of, and the decision to, rebase.  Accordingly, the communications between Argentina and the IMF on those questions were relevant to the dispute. 

The alleged confidentiality obligation

The IMF had asserted that any production of the documents would constitute a breach of Argentina's duties as a member of the IMF under Article 9, Section 5 of the IMF's Articles of Agreement. Article 9, Section 5 (along with a transparency policy published by the IMF) refers to the "inviolability of the IMF archives" and prevents the publishing or production of any documents from the IMF archives without the IMF's approval.

Confidentiality obligation did not override the duty to disclose

The Court ruled that Argentina's obligations to the IMF did not override the duty of disclosure. The decision was justified on a number of grounds: (i) the scope of the obligation of confidentiality; (ii) the relevancy of the documents in question; (iii) the unique nature of the documents in question; and (iv) proportionality.

The scope of the confidentiality obligation

The court considered the scope of the duty of confidentiality owed by Argentina under Article 9, Section 5 of the Articles of Agreement and while it acknowledged that there clearly was a duty of confidentiality, it was not of such great weight that it precluded disclosure of the documents.

Argentina, it was found, had sought disclosure of the documents from the IMF's archives because it no longer had its own copies of the documents in question. Had it retained those documents, Article 9 Section 5 would not have been engaged.

Further, the documents related to events that took place over a limited time period over 8 years ago and related, mostly, to interactions between only Argentina and the IMF such that there was a limited risk to third parties in the documents' disclosure.

The court also referred to the judgment of the Court of Appeal in Bank Mellat v HM Treasury(1) and noted that the mere existence of obligations of confidentiality may carry little weight without some evidence that there is a real risk of an adverse sanction following from production or inspection. In this instance, the IMF's objection to inspection appeared to be that of a general principle rather than a threat of specific concern.

The documents sought were highly relevant to the litigation

Considering the nature of the underlying litigation, the documents detailing the communications between the IMF and Argentina were obviously highly relevant and would, ordinarily, be disclosable. One of the issues that the expert witnesses were called upon to consider was that of the interactions between Argentina and the IMF.  Given the unavailability of documents from Argentina's records had led to the request of the IMF in the first place, the court felt that the contemporaneous documents in question were of even greater importance. The court reiterated that contemporaneous documents are "the best and most reliable form of evidence" available to a court and that to refuse inspection of the documents in such circumstances could have a considerable impact on the trial.

The content of the documents sought was not covered by other disclosure

Argentina, in its supporting evidence, had sought to argue that disclosure should not be ordered because the IMF had stated that the information contained in a series of reports (that had been disclosed) covered most or all of the information that would be provided by the withheld documents. The court disagreed with that assertion, most notably, because it was an argument for which Argentina could advance no evidence. It was an assertion advanced by the IMF. The Court stated that for that argument to hold any weight, evidence of that nature would have needed to be given by an English solicitor with knowledge of the English disclosure regime, the issues in the case and the documents in question.

In addition, the court held that contemporaneous internal emails in providing a far more revealing picture than what could be obtained from published reports.

No proportionality arguments for a mere 1,000 documents 

The court disagreed entirely with Argentina's submission that to order disclosure of the documents would be unreasonable or disproportionate and noted that ca.1000 documents was a relatively small pool of documents to review (by Commercial Court standards). The court also made it clear that in a claim valued at 650 million Euros with a five-week trial set down, the circumstances were not promising to seek to run proportionality arguments.

Commentary

Parties should be alert to the fact that a duty of confidentiality is not a golden ticket permitting documents to be withheld from disclosure. The court will consider the competing interests (including any relevant sanctions) against the consequence to the litigation should disclosure be withheld.

(1) [2019] EWCA Civ 499