Aabar Holdings SÀRL & Ors v Glencore Plc & Ors

Aabar Holdings SÀRL & Ors v Glencore Plc & Ors

The court found that disclosure of the documents in question would not constitute a violation of section 184(1) or section 272 of the Dutch Criminal Code, based on the correspondence from the Dutch prosecuting authority (DPPO) and the expert evidence of Professor Brouwer, which was preferred over that of Professor Nelemans. Even if there were any doubt, there was no real (actual) risk of prosecution in the Netherlands. The court further held that, even if a real risk of prosecution existed, the importance of the documents for the fair disposal of the English proceedings, the availability of affirmative defences, the mitigating effect of a confidentiality club, and considerations of comity...

Parties
Claimants: AABAR HOLDINGS S.À. R. L & OTHERS; First Defendant: GLENCORE PLC; Second Defendant: MR IVAN GLASENBERG
Jurisdiction
England and Wales
Judgment Date
28 August 2025
Procedural Posture
Commercial Court Financial List Multi Party Securities Litigation / Ruling on Applications by Glencore and Mr Glasenberg to Withhold Disclosure of Documents on Grounds of Alleged Dutch Law Restrictions
Outcome
Applications by Glencore and Mr Glasenberg to withhold disclosure/inspection of documents on grounds of Dutch law restrictions dismissed.
Legal Topics
Disclosure and Inspection of Documents, Foreign Law Restrictions, Mutual Legal Assistance, Securities Litigation, Bribery and Corruption, Comity, Affirmative Defences, Confidentiality Clubs
Civil Procedure International Law Criminal Law (foreign) Financial Services Law Disclosure and Inspection of Documents Foreign Law Restrictions Mutual Legal Assistance Securities Litigation +4 more

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Parties

AABAR HOLDINGS S.À. R. L & OTHERS

Claimants

GLENCORE PLC

First Defendant

MR IVAN GLASENBERG

Second Defendant

Procedural Posture

Commercial Court Financial List Multi Party Securities Litigation / Ruling on Applications by Glencore and Mr Glasenberg to Withhold Disclosure of Documents on Grounds of Alleged Dutch Law Restrictions

Legal Issues

  1. 1 Whether Glencore and Mr Glasenberg are entitled to withhold disclosure/inspection of certain documents on the basis that disclosure would breach Dutch criminal law (section 184(1) and/or section 272 DCC) and expose them to a real risk of prosecution in the Netherlands;
  2. 2 Whether the English court should exercise its discretion to relieve the Defendants from disclosure obligations in light of alleged foreign criminal law risks;
  3. 3 Whether the documents in question are important for the fair disposal of the English proceedings.

Ratio Decidendi

The court found that disclosure of the documents in question would not constitute a violation of section 184(1) or section 272 of the Dutch Criminal Code, based on the correspondence from the Dutch prosecuting authority (DPPO) and the expert evidence of Professor Brouwer, which was preferred over that of Professor Nelemans. Even if there were any doubt, there was no real (actual) risk of prosecution in the Netherlands. The court further held that, even if a real risk of prosecution existed, the importance of the documents for the fair disposal of the English proceedings, the availability of affirmative defences, the mitigating effect of a confidentiality club, and considerations of comity...

Court Disposition

Applications by Glencore and Mr Glasenberg to withhold disclosure/inspection of documents on grounds of Dutch law restrictions dismissed.

Orders

  • Glencore to provide disclosure of the three FIOD documents in accordance with the existing disclosure orders, subject to confidentiality club provisions.
  • Mr Glasenberg to produce the MLAT Request for inspection, subject to confidentiality club provisions.